AUTHENTICATED
US. GOVERNMENT
INFORMATION ^
OPERATION FAST AND FURIOUS: MANAGEMENT
FAILURES AT THE DEPARTMENT OF JUSTICE
HEARING
BEFORE THE
COMMITTEE ON OA^RSIGHT
AND GOA^RNMENT REFORM
HOUSE OF REPRESENTATDH]S
ONE HUNDRED TWELETH CONGRESS
SECOND SESSION
FEBRUARY 2, 2012
Serial No. 112-103
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DAN BURTON, Indiana
DARRELL E. ISSA, California, Chairman
ELIJAH E. CUMMINGS, Maryland, Ranking
Minority Member
JOHN L. MICA, Florida
TODD RUSSELL PLATTS, Pennsylvania
MICHAEL R. TURNER, Ohio
PATRICK T. McHENRY, North Carolina
JIM JORDAN, Ohio
JASON CHAFFETZ, Utah
CONNIE MACK, Florida
TIM WALBERG, Michigan
JAMES LANKFORD, Oklahoma
JUSTIN AMASH, Michigan
ANN MARIE BUERKLE, New York
PAUL A. GOSAR, Arizona
RAUL R. LABRADOR, Idaho
PATRICK MEEHAN, Pennsylvania
SCOTT DesJARLAIS, Tennessee
JOE WALSH, Illinois
TREY GOWDY, South Carolina
DENNIS A. ROSS, Florida
FRANK C. GUINTA, New Hampshire
BLAKE FARENTHOLD, Texas
MIKE KELLY, Pennsylvania
EDOLPHUS TOWNS, New York
CAROLYN B. MALONEY, New York
ELEANOR HOLMES NORTON, District of
Columbia
DENNIS J. KUCINICH, Ohio
JOHN F. TIERNEY, Massachusetts
WM. LACY CLAY, Missouri
STEPHEN F. LYNCH, Massachusetts
JIM COOPER, Tennessee
GERALD E. CONNOLLY, Virginia
MIKE QUIGLEY, Illinois
DANNY K. DAVIS, Illinois
BRUCE L. BRALEY, Iowa
PETER WELCH, Vermont
JOHN A. YARMUTH, Kentucky
CHRISTOPHER S. MURPHY, Connecticut
JACKIE SPEIER, California
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Robert Borden, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
(II)
CONTENTS
Page
Hearing held on February 2, 2012 1
Statement of:
Holder, Eric H., Jr., Attorney General of the United States 124
Letters, statements, etc., submitted for the record by:
Burton, Hon. Dan, a Representative in Congress from the State of Indi-
ana, prepared statement of 213
Cummings, Hon. Elijah E., a Representative in Congress from the State
of Maryland, letter dated January 30, 2012 5
Gosar, Hon. Paul A., a Representative in Congress from the State of
Arizona, prepared statement of 214
Holder, Eric H., Jr., Attorney General of the United States, prepared
statement of 128
Issa, Hon. Darrell E., a Representative in Congress from the State of
California:
Discovery documents 187, 191, 195
Memo dated February 1, 2012 102
Speier, Hon. Jackie, a Representative in Congress from the State of
California, memo dated November 16, 2007 183
(III)
OPERATION FAST AND FURIOUS: MANAGE-
MENT FAILURES AT THE DEPARTMENT OF
JUSTICE
THURSDAY, FEBRUARY 2, 2012
House of Representatives,
Committee on Oversight and Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 9:13 a.m., in room
2154, Rayburn House Office Building, Hon. Darrell E. Issa (chair-
man of the committee) presiding.
Present: Representatives Issa, Burton, Platts, McHenry, Jordan,
Chaffetz, Walberg, Lankford, Amash, Buerkle, Gosar, Labrador,
Meehan, DesJarlais, Walsh, Gowdy, Ross, Guinta, Farenthold,
Kelly, Cummings, Towns, Maloney, Norton, Kucinich, Tierney,
Clay, Lynch, Cooper, Connolly, Quigley, Davis, Welch, Yarmuth,
Murphy, and Speier.
Staff present: Ali Ahmad, communications advisor; Michael R.
Bebeau, assistant clerk; Robert Borden, general counsel; Molly
Boyl, parliamentarian; Lawrence J. Brady, staff director; Sharon
Casey, senior assistant clerk; Steve Castor, chief counsel, investiga-
tions; John Cuaderes, deputy staff director; Carlton Davis, Jessica
L. Donlon, and Mitchell S. Kominsky, counsels; Kate Dunbar, legis-
lative assistant; Adam P. Fromm, director of Member services and
committee operations; Linda Good, chief clerk; Christopher Hixon,
deputy chief counsel, oversight; Henry J. Kerner, senior counsel for
investigations; Justin LoFranco, deputy director of digital strate^;
Mark D. Marin, director of oversight; Ashok M. Pinto, deputy chief
counsel, investigations; Laura L. Rush, deputy chief clerk; Rebecca
Watkins, press secretary; Jeff Wease, deputy CIO; Beverly Britton
Fraser, Peter Kenny, and Carlos Uriarte, minority counsels; Kevin
Corbin, minority deputy clerk; Ashley Etienne, minority director of
communications; Susanne Sachsman Grooms, minority chief coun-
sel; Devon Hill, minority staff assistant; Jennifer Hoffman, minor-
ity press secretary; Carla Hultberg, minority chief clerk; Adam
Koshkin, minority staff assistant; Lucinda Lessley, minority policy
director; Scott Lindsay, minority senior counsel; and Dave Rapallo,
minority staff director.
Chairman IsSA. The committee will come to order.
The Oversight Committee’s mission statement is that we exist to
secure two fundamental principles: First, Americans have a right
to know that the money Washington takes from them is well spent;
and, second, Americans deserve an efficient, effective government
that works for them.
( 1 )
2
Our duty on the Oversight and Government Reform Committee
is to protect these rights. Our solemn responsibility is to hold gov-
ernment accountable to taxpayers, because taxpayers have a right
to know what they get from their government. Our job is to work
tirelessly in partnership with citizen watchdogs to deliver the facts
to the American people and bring genuine reform to the bureauc-
racy.
I will now recognize myself for an opening statement.
Today, we are joined by the Attorney General of the United
States over a matter that this committee has invested more than
a year in research.
In November 2009, Fast and Furious opens.
In December 2009, DEA meets with the ATF and gives them info
on Fast and Furious targets, info that could have well ended the
operation.
On January 6, 2010, Fast and Furious becomes, in fact, a joint
exercise.
On March 15, 2010, the first Federal wiretaps are issued in this
case.
On December 15, 2010, December 15, 2010, Brian Terry is mur-
dered with weapons found at the scene that came from Fast and
Furious.
On January 27th, Senator Grassley first asked the Department
of Justice about Fast and Furious; and within days we are given
a false statement of facts, denying that guns were ever allowed to
walk. Within days of that, we began to know that Fast and Furious
was going to be difficult.
That was more or less Groundhog Day a year ago. Today is
Groundhog Day again. This committee has lost its patience to wait
longer. We will not wait until next Groundhog Day to get answers
for the American people, for Brian Terry, and for others.
On March 3, 2011, John Dodson goes public. Agent Dodson is
here today. He, too, deserves to have this nightmare of uncertainty,
of having a temporary assignment, of not being allowed to do the
job for which he has dedicated his career put behind him.
On October 11th, after months and months and months of this
committee trying to get further voluntary cooperation, we issued
subpoenas for documents. To date, we have been told two things.
First of all, they are difficult and time-consuming to give us, and
yet 10 times as many documents were provided to the Inspector
General. More than three times as many people have been able to
be interviewed by the Attorney — I’m sorry, by the IG, the Inspector
General — sorry, Mr. Attorney General — ^by your Inspector General.
During that period of time, whistleblowers have consistently
brought us additional information. That information allows us to
glean more than most of the documents we have received through
discovery.
The minority can say what they want and issue the opinions they
want, the memos they want. They have been absent from this, and
I am disappointed for that. This is a legitimate requirement of this
committee to get to the bottom of it and to get genuine change so
this cannot happen again — and I repeat — the genuine change, the
safeguards, the protections that were not there apparently before
so this cannot happen again.
3
Mr. Attorney General, as we go through questioning, my question
will be when is the primary investigative committee of Congress,
of the U.S. House, going to be allowed to have the same access that
your own essentially self-appointed Inspector General has?
The IG, if you will, the 12,000 people of the Inspector General’s
Office throughout the government are important, and we expect
them to be respected, and we expect them to receive information.
But the 70 men and women that work for the majority and the 30
or so that work for the minority are a very small fraction of that.
We ask very little of government by comparison to what the in-
ternal controls historically and always will ask for. Our budget is
less than l/20th of what the Inspector General’s Office is. We are
not an agency that can ask for vast amounts of documents. We
have asked you for documents, and if you look at the totality of
government, we have asked for very little compared to the IG’s of-
fices.
We believe — and I think the ranking member will join me in
this — that we deserve those answers in at least as timely a fashion
as your own IG gets. It is our opinion that we haven’t gotten that,
that the need for overmanaging and redacting and careful looking
by teams of lawyers have gotten in the way of the legitimate speed
with which we should get that.
We are going to ask you many things today. Hopefully, you came
prepared to know a great deal about Fast and Furious. The impor-
tant things that I am going to ask today are: What can you do to
bring this to a close? What can you do before the IG completes her
investigation to allow the American people to see change that tells
them this is no longer going on and it won’t go on in the future?
Last, before I recognize the ranking member, it is this majority
at least committee’s belief that this is an operation that included
reckless behavior at ATF; failure to push harder and inform more
by DEA and the FBI; a U.S. attorney who clearly didn’t do his job
in a way that anyone should be proud of We now have a Justice
Department official who has taken the Fifth. We have moved up
a ways, and all of those people should be ashamed that Brian Terry
is dead because they didn’t do as good a job as they should. Ken-
neth Melson has said that publicly and privately, that he bears a
great deal of that blame.
The point here today is we want to know how Justice will over-
see every local operation, every State, eveiy one of the various
agencies that are either under your authority or in a joint task
force become under your authority, how you will ensure for the
American people that this will not happen again, or at least the
systems are in place to give us the confidence that it is much more
unlikely to happen.
Those are the items that I come here today, asked you to come
here today for, and I appreciate your being here voluntarily to an-
swer. It is the committee’s responsibility to ask. I hope we will get
the answers and the commitments today that we ask for.
I recognize the ranking member for his opening statement.
Mr. Cummings. Thank you very much, Mr. Chairman, and I
want to welcome the Attorney General today.
Mr. Chairman, when the committee started this investigation al-
most a year ago, you and I made pledges to the family of Agent
4
Brian Terry to find out what led to the release of hundreds of fire-
arms to criminal networks on both sides of the border. We pledged
to follow the facts wherever they may lead and provide the public
with answers.
Mr. Chairman, I want to acknowledge your efforts here. Over the
past year, we devoted incredible amounts of time, money, and en-
ergy to investigating this issue. We interviewed 22 witnesses, in-
cluding senior officials at the Department of Justice and ATF. We
also reviewed thousands of pages of documents, and we held four
full committee hearings on this very topic.
Because of our extensive work, we have had concrete results. The
committee has exposed a 5-year — 5-year pattern of gun-walking op-
erations run by the Phoenix division of ATF and the Arizona U.S.
Attorney’s Office. More importantly, we have put a stop to it. This
is a significant accomplishment, and I commend you for it.
In addition, we can now explain to the public how this series of
reckless operations originated and evolved over the past 5 years. I
ask unanimous consent to place into the record a report I sent to
Members earlier this week.
Chairman IssA. Without objection, so ordered.
Mr. Cummings. Thank you, Mr. Chairman.
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January 30, 2012
Dear Members of the Committee on Oversight and Government Reform;
On December 15, 2010, Brian Terry, an Agent in an elite Customs and Border Protection
tactical unit, was killed in a gunfight 18 miles from the Mexican border. Two AK-47 variant
assault rifles found at the scene were traced back to purchases by one of the targets of an
investigation called Operation Fast and Furious being conducted by the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF), When he purchased these weapons, the target had
already been identified as a suspected straw purchaser involved with a large network of firearms
traffickers illegally .smuggling guns to deadly Mexican drug cartels. Despite knowing about
hundreds of similar purchases over a year-long period, ATF interdicted only a small number of
firearms and delayed making arrests.
Last June, I pledged to Agent Terr)''s family that 1 would try to find out what led to this
operation that allowed hundreds of firearms to be released into communities on both sides of the
border. Following the Committee's year-long investigation of this matter, I directed my staff to
compile this report to provide some of those answers. 1 instructed them to focus on the facts we
have discovered rather than the heated and sometimes inaccurate rhetoric that has characterized
much of this investigation.
As a result, this report tolls the story of how misguided gunwalking operations originated
in 2006 as ATF's Phoenix Field Division devised a strategy to forgo prosecutions against low-
level straw purchasers while they attempted to build bigger charges against higher-level cartel
members. Unfortunately, this strategy failed to include sufficient operational controls to stop
these dangerous weapons from getting into the hands of violent criminals, creating a danger to
public safety on both sides of the border.
The report describes how, rather than halting this operation after its flaws became evident,
ATF's Phoenix Field Division launched several similarly reckless operations over the course of
several years, also with tragic results. Operation Fast and Furious was the fourth in a series of
operations in which gunwalking— the non-interdiction of illegally purchased firearms that could
and should be seized by law enforcement— occurred since 2006.
This report also details complaints by ATF line agents and senior officials in Washington,
who told the Committee that these failures were aggravated and compounded by the Arizona
U.S. Attorney's Office, which failed to aggressively prosecute firearms trafficking cases, and
Federal courts in Arizona, which showed leniency toward the trafficking networks that fuel armed
violence in Mexico.
This report debunks many unsubstantiated conspiracy theories. Contrary to repeated
claims by some, the Committee has obtained no evidence that Operation Fast and Furious was
a politically-motivated operation conceived and directed by high-level Obama Administration
political appointees at the Department of Justice. The documents obtained and interviews
conducted by the Committee indicate that it was the latest in a series of reckless and fatally
flawed operations run by ATF's Phoenix Field Division during both the previous and current
administrations.
Although this report provides a great amount of detail about what we have learned to date,
it has several shortcomings. Despite requests from me and others, the Committee never held a
hearing or even conducted an interview with former Attorney General Michael Mukascy. The
Committee obtained documents indicating that in 2007 he was personally informed about the
failure of previous law enforcement operations involving the illegal smuggling of weapons into
Mexico, and that he received a proposal to expand these operations. Since the Committee failed to
speak with Mr. Mukasey, we do not have the benefit of his input about why these operations were
allowed to continue after he was given this information.
The Committee also rejected my request to hold a public hearing with Kenneth Melson, the
former Acting Director of ATF, the agency primarily responsible for these operations. Although
Committee staff conducted an interview' with Mr. Melson, the public has not had an opportunity
to hear his explanations for why these operations continued for so many years without adequate
oversight from ATF headquarters.
As its title indicates, the Committee on Oversight and Government Reform has two
primary missions. Not only are we charged with conducting oversight of programs to root out
waste, fraud, and abuse, but we are also responsible for reforming these programs to ensure that
government works more effectively and efficiently for the American people. For these reasons,
this report sets forth constructive recommendations intended to address specific problems
identified during the course of this investigation.
Above all, in offering this report and these recommendations, I recognize and commend the
contributions of hundreds of thousands of law enforcement agents across our government who
risk their lives on a daily basis in the pursuit of public safety and in defense of this nation.
Sincerely.
7
CONTENTS
I. EXECUTIVE SUMMARY i
II. METHODOLOGY 7
III. BACKGROUND lo
IV FINDINGS 15
A. ATE Phoenix Field Operations Involving
"Gunwalking" 15
1. Operation Wide Receiver (2006-07) 15
ATF-Phoenix monitored gun dealer selling to straw buyers 16
ATF-Phoenix sought U.S. Attorney's approval to walk guns 17
ATF-Phoenix continued to walk guns after consulting with U.S. Attorney 19
ATF agents unsuccessfully attempted to coordinate with Mexico 20
ATF agents expressed concern about gunwalking 22
Criminal Division took over prosecution and found gunwalking 23
2. The Hernandez Case (2007) 24
ATF-Phoenix watched guns cross border without interdiction 24
ATF headquarters raised concerns about operational safeguards 25
Attorney General Mukasey briefed and asked to "expand" operations 26
3. The Medrano Case (2008) 29
ATF agents watched as firearms crossed the border 29
ICE agents raised concerns 30
Criminal complaint also confirms "gunwalking" 31
4. Operation Fast and Furious (2009-10) 32
Initiated by ATF-Phoenix in the Fall of 2009 ..33
Prosecutors claimed no probable cause lo arrest straw buyers 34
Prosecutor encouraged U.S. Attorney to "hold out for bigger" case 36
ATF-Phoenix sought funding and wiretaps to target higher-level suspects 38
ATF-Phoenix agents watched guns walk 39
ATF Deputy Director Hoover ordered an "exit strategy" 40
ATF-Phoenix did not follow the 90-day exit strategy and continued the operation 41
Indictments delayed for months 43
8
B. Challenges Specific to the Arizona U.S. Attorney's
Office 45
"Viewed as an obstacle more than a help" - 45
Evidentiary thresholds in Arizona 46
C. No Evidence that Senior Officials Authorized or
Condoned Gunwalking in Fast and Furious 49
Attorney General Holder 49
Deputy Attorney General Grindler.... .....52
Acting ATF Director Melson 53
ATF Deputy Director Hoover 55
United States Attorney Burke 56
Criminal Division review of Fast and Furious wiretap applications 58
Criminal Division response to Wide Receiver 60
Criminal Division interactions with Mexican Officials 63
D. Department Responses to Gunwalking in Operation
Fast and Furious 65
Inaccurate information initially provided to Congress 65
Request for IG investigation and reiteration of Department policy .68
Personnel actions 69
Agency reforms 70
V. RECOMMENDATIONS 71
9
1. EXECUTIVE SUMMARY
On December 15, 2010, Customs and Border Protection Agent Brian Terry
was killed in a gunfight in Arizona, and two AK-47 variant assault rifles found at
the scene were traced back to purchases by one of the targets of an investigation
called Operation Fast and Furious being conducted by the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF). The target already had been identified as
a suspected straw purchaser involved with a large network of firearms traffickers
smuggling guns to deadly Mexican drug cartels.
At the request of the Committee's Ranking Member, Rep. Elijah E. Cummings,
this report describes the results of the Committee's year-long investigation into the
actions and circumstances that led to this operation.
The report finds that gunwalking operations originated as early as 2006
as agents in the Phoenix Field Division of ATF devised a strategy to forgo arrests
against low-level straw' purchasers while they attempted to build bigger cases
against higher-level trafficking organizers and financiers. Rather than halting
operations after flaws became evident, they launched several similarly reckless
operations over the course of several years, also with tragic results. Each
investigation involved various incarnations of the same activity: agents were
contemporaneously aware of illegal firearms purchases, they did not typically
interdict weapons or arrest straw purchasers, and firearms ended up in the hands of
criminals on both sides of the border.
Operation Wide Receiver (2006-2007)
In 2006, ATF agents in Phoenix initiated Operation Wide Receiver with
the cooperatioir of a local gun dealer. For months, ATF agents watched in real-
time as traffickers purchased guns and drove them across the border into Mexico.
According to William Newell, the Special Agent in Charge of the Phoenix Field
Division, these suspects told the gun dealer that the "firearms are going to his boss
in Tijuana, Mexico where some are given out as gifts." Although ATF officials
believed they had sufficient evidence to arrest and charge these suspects, they
instead continued surveillance to identify additional charges. As one agent said at
the time, "we want it all."
Paul Charlton, then the U.S. Attorney in Phoenix, was informed that
firearms were "currently being released into the community," and he was asked
for his position on allowing an "indeterminate number" of additional firearms to
be "released into the community, and possibly into Mexico, without any further
- 1 -
10
ability by the U.S. Government to control their movement or future use," As his
subordinate stated, "[tjhis is obviously a call that needs to be made by you Paul."
Over the next year, ATF agents in Phoenix went forward with plans to
observe or facilitate hundreds of suspected straw firearm purchases. In 2007, a year
after the investigation began, ATF initiated attempts to coordinate with Mexican
officials. After numerous attempts at cross-border interdiction failed, however, the
lead ATF case agent for Operation Wide Receiver concluded: "We have reached that
stage where I am no longer comfortable allowing additional firearms to 'walk'."
In late 2007, the operational phase of Operation Wide Receiver was
terminated, and the case sat idle for two years. When a Justice Department
prosecutor reviewed the file in 2009, she quickly recognized that "a lot of guns seem
to have gone to Mexico" and "a lot of those guns 'walked'." The defendants were
indicted in 2010 after trafficking more than 450 firearms.
The Hernandez Case (2007)
ATF agents in Phoenix attempted a second operation in 2007 after identifying
Fidel Hernandez and several alleged co-conspirators who "purchased over two
hundred firearms" and were "believed to be transporting them into Mexico."
After being informed of several failed attempts at coordinating with Mexican
authorities, William Hoover, then ATF's Assistant Director of Field Operations,
temporarily halted operations, writing:
I do not want any firearms to go South until further notice. I expect
a full briefing paper on my desk Tuesday morning from SAC Newell
with every question answered. I will not allow this case to go forward
until we have written documentation from the U.S. Attorney's Office
re full and complete buy in. I do not want anyone briefed on this case
until I approve the information. This includes anyone in Mexico.
In response. Special Agent in Charge Newell wrote to another ATF official,
"Tm so frustrated with this whole mess I'm shutting the case down and any further
attempts to do something similar." Nevertheless, ATF operational plans show that
additional controlled deliveries were planned for October and November of that
year.
In the midst of these operations. Attorney General Michael Mukasey received
a briefing paper on November 16, 2007, in preparation for a meeting with the
Mexican Attorney General. It stated that "ATF would like to expand the possibility
of such joint investigations and controlled deliveries— since only then will it be
possible to investigate an entire smuggling network, rather than arresting simply a
- 2 -
11
single smuggler." The briefing paper also warned, however, that "the first attempts
at this controlled delivery have not been successful." Ten days later, ATF agents
planned another operation in coordination with Mexico, again without success.
Hernandez and his co-conspirators, who had purchased more than 200
firearms, were arrested in Nogales, Arizona on November 27, 2007, while attempting
to cross the border into Mexico. They were brought to trial in 2009, but acquitted
after prosecutors were unable to obtain the cooperation of the Mexican law
enforcement officials who had recovered the firearms.
The Medrano Case (2008)
In 2008, ATF agents in Phoenix began investigating a straw purchasing
network led by Alejandro Medrano. Throughout 2008, ATF agents were aware that
Medrano and his associates were making illegal firearms purchases from the same
gun dealer who cooperated with ATF in Operation Wide Receiver.
An ATF Operational Plan describes an instance on June 17, 2008, in which
agents watched Medrano and an associate illegally purchase firearms and load
them into a car bound for Mexico. According to the document, "Agents observed
both subjects place the firearms in the backseat and trunk," and then "surveilled the
vehicle to Douglas, AZ where it crossed into Mexico."
Agents from U.S. Immigration and Customs Enforcement (ICE) balked
when they learned about these tactics. After an interagency planning meeting in
August 2008, the head of ICE's Arizona office wrote to ATF Special Agent in Charge
Newell that, although ICE agents "left that meeting with the understanding that
any weapons that were followed to the border would be seized," ATF agents later
informed them that "weapons would be allowed to go into Mexico for further
surveillance by LEAs [law enforcement agents] there."
On December 10, 2008, Federal prosecutors filed a criminal complaint
that appears to confirm that ATF agents watched as Medrano and his associates
smuggled firearms into Mexico. Describing the incident on June 17, 2008, for
example, the complaint asserts that the suspects "both entered into Mexico with at
least the six (6) .223 caliber rifles in the vehicle." Medrano and his associates were
sentenced to multi-year prison terms after trafficking more than 100 firearms to a
Mexican drug cartel.
Operation Fast and Furious (2009-2010)
In Operation Fast and Furious, ATF agents in Phoenix utilized gunwalking
tactics that were similar to previous operations. In October 2009, ATF agents had
- 3 -
12
identified a sizable network of straw purchasers they believed were trafficking
military-grade assault weapons to Mexican drug cartels. By December, they had
identified more than 20 suspected straw purchasers who "had purchased in excess
of 650 firearms."
Despite this evidence, the ATF agents and the lead prosecutor in the case
believ'ed they did not have probable cause to arrest any of the straw purchasers. As
the lead prosecutor wrote: "We have reviewed the available evidence thus far and
agree that we do not have any chargeable offenses against any of the players."
In January 2010, ATF agents and the U.S. Attorney's Office agreed on a
strategy to build a bigger case and to forgo taking down individual members of the
straw purchaser network. The lead prosecutor presented this broader approach in
a memo that was sent to U.S. Attorney Dennis Burke. The memo noted that "there
may be pressure from ATF headquarters to immediately contact identifiable straw
purchasers just to see if this develops any indictable cases and to stem the flow of
guns." In the absence of probable cause, however, the U.S. Attorney agreed that
they should "[hjold out for bigger." Over the next six months, agents tried to build a
bigger case with wiretaps while making no arrests and few interdictions.
After receiving a briefing on Operation Fast and Furious in March 2010, ATF
Deputy Director William Hoover became concerned about the number of firearms
involved in the case. Although he told Committee staff that he was not aware of
gunwalking, he ordered an "exit strategy" to take down the case and ready it for
indictment within 90 days. ATF field agents chafed against this directive, however,
and continued to facilitate suspect purchases for months in an effort to salvage the
broader goal of the investigation. The case was not indicted until January 2011, ten
months after Deputy Director Hoover directed that it be shut down.
No evidence that senior officials authorized gunwalking in Fast and
Furious
The documents obtained and interviews conducted by the Committee reflect
that Operation Fast and Furious was the latest in a series of fatally flawed operations
run by ATF agents in Phoenix and the Arizona U.S. Attorney's Office. Far from a
strategy that was directed and planned by the "highest levels" of the Department
of Justice, as some have alleged, the Committee has obtained no evidence that
Operation Fast and Furious was conceived or directed by high-level political
appointees at Department of Justice headquarters.
ATF's former Acting Director, Kenneth Melson, and ATF's Deputy Director,
William Hoover, told Committee staff that gunwalking violated agency doctrine,
that they did not approve it, and that they were not aware that ATF agents in
Phoenix were using the tactic in Operation Fast and Furious. They also stated that,
- 4 -
13
because they did not know about the use of gunwalking in Operation Fast and
Furious, they never raised it up the chain of command to senior Justice Department
officials.
Apart from whether Mr. Hoover was aware of specific gun walking allegations
in Operation Fast and Furious, it remains unclear why he failed to inform Acting
ATF Director Melson or senior Justice Department officials about his more general
concerns about Operation Fast and Furious or his March 2010 directive for an "exit
strategy." During his interview with Committee staff, Mr. Hoover took substantial
personal responsibility for ATF's actions, stating: "1 have to take responsibility for
the mistakes that we made."
Former Phoenix U.S. Attorney Dennis Burke told Committee staff that
although he received multiple briefings on Operation Fast and Furious, he did not
approve gunwalking, was not aware it was being used, and did not inform officials
in Washington about its use. Fie told Committee staff that, at the time he approved
the proposal for a broader strategy targeting cartel leaders instead of straw
purchasers, he had been informed that there was no probable cause to make any
arrests and that he had been under the impression that ATF agents were working
closely with Mexican officials to interdict weapons. Given the number of weapons
involved in the operation, Mr. Burke stated that he "should have spent more time"
focusing on the case. He stated: "it should not have been done the way it was done,
and I want to take responsibility for that."
Gary Grindler, the former Acting Deputy Attorney General, and Lanny
Breuer, the Assistant Attorney General for the Criminal Division, both stated that
neither ATF nor the U.S. Attorney's Office ever brought to their attention concerns
about gunwalking in Operation Fast and Furious, and that, if they had been toid,
they "would have stopped it."
When allegations of gunwalking three years earlier in Operation Wide
Receiver were brought to the attention of Mr. Breuer in 2010, he immediately
directed his deputy to share their concerns directly with ATF's leadership. He
testified, however, that he regretted not raising these concerns directly with the
Attorney General or Deputy Attorney General, stating, "if I had known then what I
know now, I, of course, would have told the Deputy and the Attorney General."
The Committee has obtained no evidence indicating that the Attorney General
authorized gunwalking or that he was aware of such allegations before they became
public. None of the 22 witnesses interviewed by the Committee claims to have
spoken with the Attorney General about the specific tactics employed in Operation
Fast and Furious prior to the public controversy.
- 5 -
14
Testifying before the Senate Judiciary Committee, the Attorney General
stated:
This operation was flawed in its concept and flawed in its execution,
and unfortunately we will feel the effects for years to come as guns that
were lost during this operation continue to show up at crime scenes
both here and in Mexico. This should never have happened and it
must never happen again.
The strategy of forgoing immediate action in order to build a larger case is
common in many law enforcement investigations, and the Committee has obtained
no evidence to suggest that ATF agents or prosecutors in Arizona acted with
anything but a sincere intent to stem illegal firearms trafficking.
Nevertheless, based on the evidence before the Committee, it is dear that ATF
agents in Phoenix and prosecutors in the Arizona U.S. Attorney's Office embarked
on a deliberate strategy not to arrest suspected straw purchasers while they
attempted to make larger cases against higher-level targets. Although these officials
claimed they had no probable cause to arrest any straw purchasers at the time,
allowing hundreds of illegally purcha.sed military-grade assault weapons to fall into
the hands of violent drug cartels over the course of five years created an obvious and
inexcusable threat to public safety on both sides of tlie border.
- 6 -
15
11. METHODOLOGY
Over the past year, the Committee has conducted an investigation into
firearms trafficking investigations run by the Phoenix Field Division of the Bureau
of Alcohol, Tobacco, Firearms and Explosives (ATF). This inquiry was originally
brought to the Committee's attention by Senator Charles Grassley, the Ranking
Member of the Senate Judiciary Committee, who had asked ATF to respond to
allegations that agents had knorvingly allowed the sale of firearms to suspected
straw purchasers during Operation Fast and Furious. The Committee has been
joined in its investigation by Majority and Minority staff of the Senate Judiciary
Committee.
To date, there have been nine congressional hearings relating to these topics,
including three before this Committee. Attorney General Eric Holder has agreed
to testify before the Committee on February 2, 2011. He has testified previously on
five other occasions regarding these issues, including before the Senate and House
Judiciary Committees in November and December 2011, respectively.
Committee staff have interviewed 22 witnesses from the ATF Phoenix Field
Division, the U.S. Attorney's Office for the District of Arizona, ATF headquarters,
and the Department of Justice, Committee staff have also interviewed multiple
Federal firearms dealers. The Department has made numerous officials available
for briefings, transcribed interviews, and hearings, including the former Deputy
Attorney General, the Assistant Attorney General for the Criminal Division, the
Deputy Assistant Attorney General for the Criminal Division, and the U.S. Attorney
for the District of Arizona. The Department has also organized briefings during the
course of the investigation, including with senior leaders from the Federal Bureau of
Investigation (FBI) and Drug Enforcement Agency (DEA).
In March 2011, the Committee sent letters to ATF and the Department of
Justice requesting documents and communications. Committee Chairman Darrell
Issa subsequently issued subpoenas for these documents in March and October
2011, and he has issued numerous document requests to other agencies, including
the FBI and DEA.
The Committee has now obtained more than 12,000 pages of internal emails,
reports, briefing papers, and other documents from various Federal agencies,
whistleblowers, firearms dealers, and other parties. The Department of Justice has
produced approximately 6,000 pages of documents to the Committee, including
sensitive law enforcement materials related to the pending prosecution of the
defendants in the underlying Fast and Furious case.
- 7 -
16
The Department has declined to produce some documents, including "reports
of investigation" and prosecutorial memoranda in the underlying cases. The
Department has stated that providing these particular documents at this time could
compromise the prosecution of 20 firearms trafficking defendants scheduled for trial
in September. In addition, the Department has not provided documents related
to its internal deliberations about responding to this congressional investigation,
with the exception of documents and correspondence related to the drafting of
the February 4, 2011, letter to Senator Grassley, which the Department formally
withdrew on December 2, 2011. The Deputy Attorney General explained this policy
in a letter to the Committee:
The Department has a long-held view, shared by Administrations of
both political parties, that congressional requests seeking information
about the Executive Branch's deliberations in responding to
congressional requests implicate significant confidentiality interests
grounded in the separation of powers under the U.S. Constitution.'
The letter stated that the Department made an exception to this policy
and provided documents relating to the drafting of the February 4 letter because
Congress had unique equities in understanding how inaccurate information had
been relayed to it.^
On November 4, 2011, Ranking Member Elijah Cummings requested a
hearing with former Attorney General Michael Mukasey in light of documents
obtained by the Committee indicating that the former Attorney General was briefed
in 2007 on an unsuccessful coordinated delivery operation, as well as a proposal to
expand such operations in the future. Ranking Member Cummings wrote:
Given the significant questions raised by the disclosures in these
documents, our Committee's investigation will not be viewed as
credible, even-handed, or complete unless we hear directly from
Attorney General Mukasey.’
The Committee has not held a hearing with Mr. Mukasey, nor has it
conducted an interview with him, depriving the Committee of important
information directly relevant to the origin of these operations.
In addition, on October 28, 2011, Ranking Member Cummings requested a
public hearing with Kenneth Melson, the former Acting Director of ATF. He wrote:
Since the Attorney General has now agreed to appear before Congress
in December, I believe Members also deserve an opportunity to
question Mr. Melson directly, especially since he headed the agency
responsible for Operation Fast and Furious.''
- 8 -
17
To date, the Committee has declined to hold this hearing.
In June 2011, Ranking Member Cummings issued a report entitled
"Outgunned: Law Enforcement Agents Warn Congress They Lack Adequate Tools
to Counter Illegal Firearms Trafficking."® He also hosted a Minority Forum of
experts regarding the larger problem of firearms trafficking and the lack of law
enforcement tools to stem this tide.®
OlJTGUNNT^D
Lau KHloiroHM'iil Wain Con^iTss Tlu'v Lijck
A(l<'<(nat(‘ Tools ro Coiuitor Fircaniis Tntnicluii^
Barrett .5B Caliber Sifis
Miiioi-Uy Staff Rt'jwH.
R'(']>!Iiik 1 for Raiikinj; Momlx'r Klijah E. (Mniinin^s
(.'oHimitttH' on Oversight jukI 0<»v<irninent Riiforni
,)mie30ll
iUtium rilKnV.-INjnill.jtfMIr^yntli
- 9 -
18
III. BACKGROUND
Over the past five years, the Mexican government has been locked in a battle
with drug trafficking organizations seeking control of lucrative trafficking routes
that carry billions of dollars in narcotics destined for the United States. This battle is
fueled in part by the tens of thousands of military-grade weapons that cross the U.S.
border into Mexico every year. In particular, law enforcement officials have reported
that the "weapons of choice" for international drug cartels are semi-automatic
rifles and other assault weapons. These weapons are frequently purchased in the
United States because they are generally illegal to purchase or possess in Mexico.^
According to the latest statistics from the Mexican Attorney General's office, 47,515
people have been killed in drug-related violence since 2006.*
On November 1, 2011, Assistant Attorney General Lanny Breuer testified
before the Senate Judiciary Committee that the vast majority of guns recovered in
Mexico were imported illegally from the United States:
From my understanding, 94,000 weapons have been recovered in the
last five years in Mexico. Those are just the ones recovered. Senator,
not the ones that are in Mexico. Of the 94,000 weapons that have been
recovered in Mexico, 64,000 of those are traced to the United States.’
These statistics are consistent with reports from the Mexican government.
In May 2010, Mexican President Felipe Calderon stated before a joint session of
NUMBER OF FIREARMS SEIZED IN MEXICO AND
TRACED BACK TO THE UNITED STATES, 2004 - 2010
IBOM
1B000
U,2i3
ry2004 FY2005 FY2006 FYS007 FYSOOS CY2009 C¥2010
Piic?rBisTraiTiddHg,to Mfxico: A Rejwt&y Swi^ojsi'iamifrFesHStein. C harfss Sdtuint!
ami .'ihculnii IMiilthoiis* tn Hie PaitstJ taatea Spijate Csunis on inletnaiions! KatcoHcs Control Cutio iOl.li.
tHn cmiiicm ,\ctxsTui|ahih«v c'lYice Repoit, Firfsins TVsfhckiiigi U.S. ERcfU io Combat .Ami’-' I'rafficivitia i-o
i^irxicu i-Bc* Sit! naii wt ChalU.ABc**; siid UfCe' .Iran ATF Acting {>irccioi- Kwnctii '.Id.^nn to
Scnalnr Pcwnr ri'ein^4ein fjime IQiTb). Note: Fi.scsl year, CY~ Calmer Year.
- 10 -
19
Congress that, of the 75,000 guns and assault weapons recovered in Mexico over the
past three years, more than 80% were traced back to the United States.”’
ATF is the primary U.S. law enforcement agency charged with combating
firearms trafficking from the United States to Mexico. ATF enforces Federal firearms
laws and regulates the sale of guns by the firearms industry under the Gun Control
Act of 1968.” ATF reports to the Attorney General through the Office of the Deputy
Attorney General.'- ATF is organized into 25 Field Divisions led by Special Agents
in Charge who are responsible for multiple offices within their jurisdiction.” In
Phoenix, the Special Agent in Charge is currently responsible for offices in Phoenix,
Flagstaff, Tucson, and Yuma, Arizona, as well as Albuquerque, Las Cruces, and
Roswell, New Mexico.”
The U.S. Attorney for the District of Arizona is the chief Federal law
enforcement officer in the State of Arizona. The District of Arizona has
approximately 170 Assistant United States Attorneys and approximately 140 support
staff members split equally between offices in Phoenix and Tucson.'^ As part of its
responsibilities, the U.S Attorney's Office has primary responsibility for prosecuting
criminal cases against individuals who violate Federal firearms trafficking laws in its
region.”^
Attorneys from the Department's Criminal Di\'ision in Washington, D.C.
serve as legal experts on firearms-related issues and assist in prosecuting some
firearms trafficking cases.” In addition to developing and implementing strategies
to attack firearms trafficking networks. Criminal Division attorneys occasionally
assist the U.S. Attorneys' offices in prosecuting firearms trafficking cases.'®
In 2006, ATF implemented a nationwide program called Project Gunrunner
to attack the problem of gun trafficking to Mexico.”' Project Gunrunner is part of
the Department's broader Southwest Border Initiative, which seeks to reduce cross-
border drug and firearms trafficking and the high level of violence associated with
these activities on both sides of the border,®
In June 2007, ATF published a strategy document outlining the four key
components to Project Gunrunner: the expansion of gun tracing in Mexico,
international coordination, domestic activities, and intelligence. In implementing
Project Gunrunner, ATF has focused resources on the four Southwest Border States.
Additionally, Attorney General Holder has testified that, since his confirmation in
2009, the Department of Justice has made combating firearms trafficking to Mexico a
top priority.^'
In November 2010, the Department of Justice Inspector General issued a
report examining the effectiveness of Project Gunrunner in stopping the illicit
trafficking of guns from the United States to Mexico. The Inspector General found
- 11 -
20
that "ATF's focus remains largely on inspections of gun dealers and investigations of
straw purchasers rather than on higher-level traffickers, smugglers, and the ultimate
recipients of the trafficked guns." The report recommended that ATF "[fjocus on
developing more complex conspiracy cases against higher level gun traffickers and
gun trafficking conspirators." The report also found that U.S. Attorneys' offices
often declined Project Gunrunner cases because firearms investigations are often
difficult to prosecute and result in lower penalties,^-
Typical firearms trafficking cases involve a "sfraw purchase" in which the
actual buyer of a firearm uses another person, "the straw purchaser," to execute the
paperwork necessary to purchase the firearm from a gun dealer.” The actual buyer
typically is someone who is prohibited from buying a firearm and cannot pass the
background check or who does not want a paper trail documenting the purchase.
Gun trafficking organizations regularly use straw purchasers who deliver firearms
to intermediaries before other members of the organizations transfer the guns across
the border.^"*
There is no Federal statute specifically prohibiting firearms trafficking or
straw purchases. Instead, ATF agents and Federal prosecutors use other criminal
statutes, including; (1) 18 USC § 924(a)(1)(A) which prohibits knowingly making a
false statement on ATF Form 4473; (2) 18 USC § 922(a)(6) which prohibits knowingly
making a false statement in connection with a firearm purchase; (3) 18 USC §
922(g)(1) which prohibits possession of a firearm by a convicted felon; and (4)
18 use § 922(a)(1)(A) which prohibits engaging in a firearms business without a
license.”
CURRENT WEAPONS OF CHOICE
ary Wessons
of
Bushmasisr XM1 5 Rifles
Romarm Cuglr 7,62 x 33mm rffles
FN 5.7 X 28mm pisJols
.50 caliber rifles (Barretf, Beowulf)
DPMS .223 rifles
Bereiia Model 32 pisiols
Taurus PT 9mm pistols
Coif .38 Super pistols
Secondary Marttet Inspeetf on
Weapons Choice
Colt AR15 Spoiler & Bushmaster
XM15 rifles
Romano 7.62 x 39mm rifles
DPMS and Olympic Arms ,223 rifles
Norinco, Polytech, and Maadii AKS rifles
Alexander Arms Beowulf .60 rifles
Beretta and Taurus 9mm pistols
Colt .38 Super & ,45 Pistols
21
Key ATF Personnel
nurinn Onffmtinn Fast and Furious I2009-7010)
HQ
Kenneth Melson
Acting Director
William Hoover
Deputy Director
Office of Strategic
Intelligence and
Information (OSII)
Mark Chait
Assistant Director
for Field Operations
r
William McMahon
Deputy Assistant Director
for Field Operations
I
Chief of
International Affairs
Phoenix
William Newell
Special Agent in Charge
Assistant Special
Agents in Charge
Mexico
Attache to
Mexico
I
Group Supervisor
Group VII
Special Agent
Special Agent
Special Agent
Special Agent
- 13 -
22
Key DOJ Personnel
During Operation Fast and Furious (2009-2010)
- 14 -
23
IV. FINDINGS
A. ATF Phoenix Field Operations
Involving "Gunwalking"
Documents obtained by the Committee and transcribed interviews conducted
by Committee staff have identified a series of gunwalking operations conducted
by ATF's Phoenix Field Division, Beginning in 2006, each of these investigations
involved various incarnations of the same activity: ATF-Phoenix agents were
contemporaneously aware of suspected illegal firearms purchases, they did not
typically interdict the weapons or arrest the straw purchasers, and those firearms
ended up in the hands of criminals on both sides of the border.
I. Operation Wick" Receiver (2006-07)
Operation Wide Receiver began in early 2006 when ATF agents in Tucson
opened an investigation of a suspected straw purchaser after receiving information
from a cooperating gun dealer. Documents indicate that agents worked closely with
this dealer, including by contemporaneously monitoring firearms sales to known
straw purchasers without arrests or interdiction, and that they sought authorization
for the expansion of this operation from then-U.S, Attorney for the District of
Arizona, Paul Charlton,
The evidence also indicates that, between March 2006 and mid-2007, ATF
agents had contemporaneous knowledge of planned sales of firearms to known
straw purchasers and repeatedly designed surveillance operations of these illegal
firearms purchases without effectuating arrests. According to documents obtained
by the Committee, agents avoided interdicting weapons despite having the legal
authority to do so in order to build a bigger case. Despite repeated failed attempts
to coordinate surveillance with Mexican law enforcement the ATF agents continued
to attempt these operations.
- 15 -
24
Although the operational phase of the investigation ended in 2007, the case
was not prosecuted for more than two years, during which time no arrests were
made and the known straw purchasers remained at large. A prosecutor from the
Criminal Division of the Department of Justice who was assigned to Operation Wide
Receiver in 2009 and reviewed the case file raised concerns that many guns had
"walked" to Mexico.
ATF-Phoenix monitored gun dealer selling to straw buyers
In March 2006, ATF-Phoenix agents received a tip from a Federal Firearms
Licensee (FFL) in Tucson, Arizona, that a suspected straw purchaser had purchased
six AR-15 lower receivers and placed an order for 20 additional lower receivers.®’
The agents opened an investigation of the purchaser because the nature of the
transaction suggested a possible connection to illegal firearms trafficking.^^
Some military-style firearms consist of an upper and lower receiver, with the
low'er receiver housing the trigger mechanism, and the upper receiver including
the barrel of the firearm. According to a memorandum from the U.S. Attorney's
Office, ATF had information that the suspects were obtaining both receivers and
assembling them to create illegal firearms.^® The firearms were illegal because the
barrels were 10.5 inches in length, and rifles with barrels shorter than 16 inches must
be registered and licensed with ATF.^’
According to summaries prepared subsequently by a Department of Justice
attorney prosecuting the case, "The FFL agreed to work with ATF to target the
persons who were interested in purchasing large quantities of lower receivers
for AR-15s." Specifically, "The FFL agreed to consensual recordings both of the
purchases and phone calls."®® Soon thereafter, ATF-Phoenix briefed prosecutors
in the Arizona U.S. Attorney's Office that several suspicious individuals were
purchasing "large quantities of lower receivers" from a Tucson FFL.®'
In a June 22, 2006, memorandum, the Special Agent in Charge of ATF-Phoenix
explained that the three suspects in the case had purchased a total of 126 AR-15
lower receivers. According to the memo, one of the suspected straw purchasers
"advised the CS [confidential source] that he takes the firearms to a machine shop
at or near Phoenix, AZ and they are converted into machine guns." The ATF agents
also suspected that these firearms were making their way to Mexico and into the
hands of a dangerous drug cartel. Specifically, the Special Agent in Charge wrote
that, "ATF just recently tracked the vehicle to Tijuana, Mexico,"and one suspected
straw purchaser "stated that these straw purchased firearms are going to his boss in
Tijuana, Mexico where some are given out as gifts."®®
A'FF agents learned that the suspected straw purchasers were seeking a new
supplier of upper receivers:
- 16 -
25
The purchasers have asked the FFL to provide the uppers to them as
rvell, indicating that they are not pleased with their current source
for the uppers. The FFL has expressed reluctance to the purchasers
regarding selling them both the lowers and the 10.5 inch uppers, as
that would look very suspicious as if he was actually providing them
with an illegal firearm. The purchasers are well aware that it is illegal
to place a 10.5 inch upper on the lowers they are purchasing from the
FFL. The FFL has indicated that he could try to find another 3rd party
source of uppers for the purchasers.^^
According to legal research provided by ATF counsel to attorneys in the U.S.
Attorney's Office, it is illegal to possess both the upper and lower receivers, even if
they are not assembled: "The possessor does not have to assemble the lower and the
upper so long as the firearm is in actual or constructive possession of the offender,
and can be 'readily restored' to fire."'^
Despite evidence that the suspects illegally possessed both upper and lower
receivers, were assembling them, and rvere transporting them to Mexico, ATF
did not arrest the suspects. On March 31, 2006, the Resident Agent in Charge of
the Tucson office— a local office that reports to the Special Agent in Charge of the
Phoenix Field Division— wrote an email explaining that they had enough evidence
to arrest the suspects, but that they were waiting to build a bigger case. He wrote:
We have fwo AUSA assigned to this matter, and the USAO @ Tucson
is prepared to issue Search and Arrest Warrants. We already have
enough for the 371 and 922 a6 charges, but we want the Title 11
manufacturing and distribution pieces also— we want it all,-’^
ATF-Phoenix sought U.S. Attorney's approval to walk guns
The evidence indicates that, rather than arrest the straw buyers, the ATF
Phoenix Field Division sought the approval of the U.S. Attorney's Office to let the
guns walk in June 2006. The prosecutors handling the case wrote a memorandum to
Paul Charlton, U.S, Attorney for the District of Arizona, which outlined the request.
They wrote:
ATF is interested in introducing a Cl [confidential informanti to act
as this source of uppers. This would further the investigation in that
it would provide more solid evidence that the purchasers are in fact
placing illegal length uppers on the lowers that they are purchasing
from the currently-involved FFL, It may also lead to discovery of more
information as to the ultimate delivery location of these firearms and/
or the actual purchaser.-^
- 17 -
26
ATF-Phoenix and the Arizona U.S. Attorney's Office both understood that
ATF was already letting firearms walk by working with a cooperating FFL to provide
"lower receivers" to straw purchasers trafficking them to Mexico. According to the
prosecutors' memorandum to U.S. Attorney Charlton:
[The ATF Agent] pointed out that these same exact firearms are
currently being released into the community, the only difference being
that at this time ATF is only involved in providing the lower receiver.
We know that an illegal upper is being obtained from a third party, but
the government is not currently involved in that aspect.’^
The memo to U.S. Attorney Charlton then relayed ATF-Phoenix's request:
The question was posed by RAC [Resident Agent in Charge] Higman
as to the U.S. Attorney's Office's position on the possibility of allowing
an indeterminate number of illegal weapons, both components of
which (the upper and the lower) were provided to the criminals
with ATF's knowledge and/or participation, to be released into the
community, and possibly into Mexico, without any further ability by
the U.S. Government to control their movement or future use.
The memo further stated that the proposed tactics were controversial and
opposed by ATF's legal counsel:
[The ATF agent] indicated that ATF's legal counsel is opposed to
this proposed method of furthering the investigation, citing moral
objections. Recognizing that it will eventually be this office that will
prosecute the individuals ultimately identified by this operation,
RAC Higman has requested that we ascertain the U.S. Attorney's
Office's position with regard to this proposed method of furthering the
investigation.^*
When the Chief of the Criminal Division in the U.S. Attorney's Office sent the
prosecutor's memo to U.S. Attorney Charlton, she accompanied it with an email in
which she stated that it "does a very good job outlining the investigation and the
potential concerns. This is obviously a call that needs to be made by you Paul."-”
U.S. Attorney Charlton responded the next day: "Thanks — I'm meeting with the
ATF SAC [Special Agent in Charge William Newell] on Tuesday and I'll discuss it
with him then."*”
Although the Committee has obtained no document memorializing the
subsequent conv'ersation between U.S. Attorney Charlton and the Special Agent
in Charge, documents obtained by the Committee indicate that ATF-Phoenix went
forward with their plans to observe or facilitate hundreds of firearms purchases by
- 18 -
27
the suspected straw purchasers without arrests. Committee staff did not conduct a
transcribed interview of Mr. Charlton.
ATF-Phoenix continued to walk guns after consulting with U.S.
Attorney
In October 2006, ATF agents planned a surveillance operation to observe
a suspect purchase AR-15 lower receivers and two AR-15 rifles, determine if the
suspect was going to make additional purchases, and identify any of his associates."
The Operational Plan noted:
It is suspected that [the suspect] will now be moving the firearms to
Tijuana him.self. We are not prepared to make any arrests at this time
becau.se we are still attempting to coordinate our efforts with AFI
[Agencia Federal de Investigacion] in Mexico. ... If it is determined
that [the suspect] has spotted the surveillance unit, surveillance will be
stopped immediately,'*^
Documents indicate that ATF agents observed the suspect purchase five
AR-15 lower receivers and terminated surveillance after three hours.*^ Notes taken
after the investigation explained that the surveillance included audio recordings of
the suspect stating that he "is now personally transporting the firearms to Tijuana,
Mexico himself."
On December 5, 2006, Special Agent in Charge Newell wrote that another key
suspect in the Wide Receiver investigation had recently "purchased a total of ten (10)
- 19 -
28
AR-15 type lower receivers on two separate purchases."'''’ He also wrote that, during
those transactions, the suspect told the confidential source that he was taking the
firearms to Mexico and would soon be ordering an additional 50 lower receivers."*'’
Special Agent in Charge Newel! wrote that the Tucson field office was planning to
secure the cooperation of Mexican authorities:
The Tucson II Field Office has maintained contact with the ATF Mexico
City Country Office in an effort to secure the cooperation and join
investigation with the Agencia Federal de Investigacion (Mexico).
Three Tucson II Field Office SA have obtained official U.S. Government
passports in anticipation of a coordination meeting with the AFT early
during calendar year 2007.'''
On February 23, 2007, ATF agents planned to conduct a traffic stop of one
suspected straw purchaser "with the assistance of the Tucson Police Department."**
Although the Operational Plan indicated that "[pjrobable cause exists to arrest [the
suspect]," the agents' goal was to lawfully detain him at the traffic stop and bring
him to the ATF office for questioning.*'' According to a memorandum from Special
Agent in Charge Newell, between February 7 and April 23, 2007, the suspect and
co-conspirators together purchased and ordered 1.50 firearms, including AK-47 and
AR-15 rifle,s and pistols.* Although ATF apparently had probable cause for arrest,
on February 27, 2007, the subject was interviewed by ATF agents and released.*' The
documents do not indicate why he was not arrested and prosecuted at that time.
ATF agents unsuccessfully attempted to coordinate with Mexico
The documents indicate that, although ATF had sufficient evidence to arrest
the suspected straw purchasers, the agents continued to press forward with plans
to attempt coordinated surveillance operations with Mexico. In April 2007, the
ATF agents in charge of Operation Wide Receiver were unsure whether they could
successfully coordinate .surveillance with their Mexican counterparts. On April 10,
2007, the case agent for Wide Receiver wrote to a Tucson Police Department (TPD)
officer:
Assuming that the MCO [ATF's Mexico Country Office] can coordinate
with the Mexican authorities, we anticipate that Tucson VCIT will
hand off his surveillance operation at the U.S. / Mexican border.
No ATF SA or local officers working at our direction will travel
into Mexico. Through MCO we have requested that the Mexican
authorities pick up the surveillance at the border and work to identify
persons, telephone numbers, "stash" locations and source(s) of money
supply in furtherance of this conspiracy.*^
- 20 -
29
According to an ATF Operational Plan, just one day later, ATF agents and
Tucson Police officers conducted surveillance and recorded the "planned arrival
of [the suspect] and other persons at the FFL."^-’ The Operational Plan stated
that U.S. law enforcement would watch the "firearms cross international lines
and enter Mexico. ... If the Mexican authorities decline or fail to participate in
this operation the firearms traffickers will be arrested prior to leaving the United
States. Although the agents obtained an electronic record of the sale and initiated
surveillance, the plan failed according to a summary prepared by one agent:
ATF agents in conjunction with TPD VCIT Task Force Officers
conducted a surveillance of suspected firearms traffickers in
furtherance of this investigation. Suspects purchased 20+ firearms
which totaled over $35,000.00 in retail cost. The surveillance
successfully obtained electronic evidence of the transaction, further
identified the traffickers and additional suspect vehicles. The
traffickers were followed to a neighborhood on the Southside of
Tucson and then later lost. The suspects are planning on making a
purchase of 20-50 M4 rifles and arc negotiating this next deal. The
investigation continues.’^
Despite the surveillance of the straw purchase and other evidence collected
during the April 11, 2007, operation, the suspects were not arrested even after they
were later located. Instead, more operations were planned.
An April 23, 2007, memo from Special Agent in Charge Newell to the Chief
of Special Operations requesting additional funding for Operation Wide Receiver
documented the failure to coordinate surveillance with Mexican law enforcement
and public safety risks associated with continuing on that course:
To date, the Tucson II Field Office and TPD SID have been unable
to surveil the firearms to the International border. From contact
with those offices, the Mexican Federal law enforcement authorities
understand that the surveillance is difficult and that several firearms
will likely make it to Mexico prior to a U.S. law enforcement successful
surveillance of firearms to the international border.^*’
Two weeks later, on May 7, 2007, ATF agents and Tucson Police conducted
surveillance of another "planned arrival" of a suspected straw purchaser and his
associates at an FFL.^^ The Operational Plan shows that ATF agents had advance
notice that the suspect had contacted the FFL to arrange the purchase of more than
20 firearms, planned to purchase the firearms from the FFL later in the day, and
had made arrangements for a vehicle to transport the weapons into Mexico that
night.® The Operational Plan indicated that "[i]f the Mexican authorities decline
or fail to participate, the firearms traffickers will be arrested prior to leaving the
- 21 -
30
United States."™ ATF agents contacted Mexican law enforcement in advance of the
operation and they agreed to assist with surveillance of the suspects if they entered
Mexico.™’ According to a subsequent summary of these events;
[The suspects] were scheduled to purchase the ordered firearms.
[Redacted] cancelled at the last minute, but [the suspect] purchased 15
firearms and was surveilled to his residence at [redacted]. Surveillance
was discontinued the following day due to neighbors becoming
suspicious of surveillance vehicles."’’’
The suspects were not arrested, the firearms were not interdicted, and the
investigation continued in anticipation of the suspects' next major purchase.
ATF agents expressed concern about gunwalking
Agents in ATF's Phoenix Field Division began to express concern that
Operation Wide Receiver was not yielding the desired results. In a June 7, 2007,
email, one special agent on the case wrote to his supervisor:
We have invested a large amount of resources in trying to get the load
car followed to Mexico and turning it over to PGR [Mexican federal
prosecutors] and are preparing to expend even more. We already have
numerou.s charges up here and actually taking in to Mexico doesn't
add to our case specifically at that point. We want the money people
in Mexico that are orchestrating this operation for indictment but
obviously we may never actually get our hands on them for trial, so
the real beneficiary is to PGR."
Despite the agent's concerns, Operation Wide Receiver remained on the
same course with another "planned arrival" attempted on June 26, 2007." The
Operational Plan indicated that ATF agents had advance notice that the suspect
had been in contact with the FFL, that the suspect was "extremely anxious" to
purchase more firearms, and that firearms are to be purchased and tlien continue to
"unknown locations throughout Tucson and Southern Arizona."'” Documents show
that ATF agents and Tucson police were unable to follow the firearms to the Mexican
border.''-’’
In an email sent on June 26, 2007, as the surveillance operation was set to
begin, the ATF case agent for Operation Wide Receiver expressed reluctance about
the repeated failures to coordinate surveillance of firearms traffickers with Mexican
law enforcement.'"’ He wrote to a prosecutor at the Texas U.S. Attorney's Office:
We anticipate surveillance this evening where the subject(s) of interest
are scheduled to purchase approx. $20K of associated firearms for
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further shipment to Caborca, Mx, and we are coordinating with the
Mexican authorities in the event that the surveillance is successful. We
have reached that stage where I am no longer comfortable allowing
additional firearms to 'walk/ without a more defined purpose,*’^
Criminal Division took over prosecution and found gunwalking
In late 2007, the operational phase of Operation Wide Receiver was
terminated, and the case was passed to the U.S. Attorney's Office for prosecution.
The case then sat idle for nearly two years without indictments or arrests. The
first prosecutor assigned to the case became a magistrate judge, and the second
prosecutor did not open the case file for more than six months.®
In 2009, the Department of Justice's Criminal Division in Washington, D.C.
offered to assign prosecutors to support firearms trafficking cases in any of the five
border-U.S. Attorneys' offices.^ The U.S. Attorney's Office in Arizona accepted the
offer and asked for assistance with the prosecution of targets in Operation Wide
Receiver,^“ In September 2009, the Criminal Division assigned an experienced
prosecutor to take over the case.^'
After reviewing the investigative files from 2006 and 2007, the Criminal
Division prosecutor quickly realized that there were serious questions about how
the case had been handled. On September 23, 2009, she wrote an email to her
supervisors giving a synopsis of the case and its problems: "In short it appears that
the biggest problem with the case is its [sic] old should have been taken down last
year AND a lot of guns seem to have gone to Mexico."^’
As she prepared the case for indictment, she continued to update her
supervisors as new details emerged from the case file. On March 16, 2010, she sent
an email to her supervisor:
It is my understanding that a lot of those guns "walked." Whether
some or all of that was intentional is not known. The AUSA seemed
to think ATF screwed up by not having a mechanism in place to seize
weapons once they crossed the border.'^
The prosecutor also found evidence that guns involved in Operation Wide
Receiver were connected to crime scenes in Mexico. She wrote that "13 of the
purchased firearms have been recovered in Mexico in connection with crime scenes,
including the April 2008 Tijuana gun battle" and that "[t]wo potential defendants
were recently murdered in Mexico."^''
The Criminal Division proceeded with prosecutions relating to the
investigation. In May 2010, one suspect pleaded guilty to forfeiture charges pre-
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32
indictment while two additional co-conspirators were indicted in federal court,’’ On
October 27, 2010, seven additional suspects were indicted in the District of Arizona
on gun-trafficking related charges.^*'
2, The Hernandez Case (2007)
According to documents obtained by the Committee, agents in the ATF
Phoenix Field Division unsuccessfully attempted a second operation in the summer
of 2007 after identifying Fidel Flernandez and several alleged co-conspirators as
suspected straw purchasers seeking to smuggle firearms into Mexico. Despite failed
attempts to coordinate with Mexican authorities, ATF agents sought approval from
the U.S. Attorney's Office to expand so-called "controlled deliveries." In addition,
documents obtained by the Committee indicate that then-Attorney General Michael
Mukasey was personally briefed on these failed attempts and was asked to approve
an expansion of these tactics. During the course of the investigation, Hernandez and
his co-conspirators reportedly purchased more than 200 firearms.
ATF-Phoenix watched guns cross border without interdiction
According to their Operational Plan, ATF-Phoenix Field Division agents
initiated a firearms trafficking investigation in July 2007 against Fidel Hernandez
and his associates who, between July and October 2007, "purchased over two
hundred firearms" and were "believed to be transporting them into Mexico,"'^ ATF
analysts discovered that "Hernandez and vehicles registered to him had recently
crossed the border (from Mexico into the U.S.) on 23 occasions" and that "four of
their firearms were recovered in Sonora, Mexico."^*
According to contemporaneous ATF documents, ATF-Phoenix unsuccessfully
attempted a cross-border operation in September 2007 in coordination with Mexican
law' enforcement authorities:
On September 26 and 27, 2007, Phoenix ATF agents conducted
nonstop surveillance on Hernandez and another associate, Carlos
Morales. ATF had information that these subjects were in possession
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of approximately 19 firearms (including assault rifles and pistols)
and were planning a firearm smuggling trip into Mexico. The
surveillance operation was coordinated with Tucson I Field Office and
the ATF Mexico Country Attache. The plan, agreed to by all parties
and authorized by the Phoenix SAC, was to follow these subjects
to the border crossing in Nogales, Arizona while being in constant
communication with an ATF MCO [Mexico Country Office] agent
who would be in constant contact with a Mexican law enforcement
counterpart at the port of entry and authorized to make a stop of the
suspects' vehicle as it entered into Mexico,
On September 27, 2007, at approximately 10:00 pm, while the Phoenix
agents, an MCO agent and Mexican counterparts were simultaneously
on the phone, the suspects' vehicle crossed into Mexico. ATF agents
observed the vehicle commit to the border and reach the Mexican side
until it could no longer be seen. The ATF MCO did riot get a response
from the Mexican authorities until 20 minutes later when they
informed the MCO that they did not see the vehicle cross.™
ATF headquarters raised concerns about operational safeguards
Failed attempts to coordinate with Mexican authorities to capture suspected
firearms traffickers as part of controlled deliveries raised serious concerns at ATF
headquarters. On September 28, 2007, the day after the failed attempt, Carson
Carroll, ATF's then-Assistant Director for Enforcement Programs, notified William
Hoover, ATF's then-Assistant Director of Field Operations, that they had failed in
their coordination. Mr. Carroll stated that when the suspected firearms traffickers
were observed purchasing a number of firearms from an FFL in Phoenix, Arizona,
ATF officials "immediately contacted and notified the GOM [Government of Mexico]
for a possible controlled delivery of these weapons southbound to the Nogales, AZ.,
us/Mexico Borcier."*’ Mr. Carroll continued:
ATF agents observed this vehicle commit to the border and reach the
Mexican side until it could no longer be seen. We, the ATF MCO did
not get a response from the Mexican side until 20 minutes later, who
then informed us that they did not see the vehicle cross.*'
According to internal ATF documents, ATF agents attempted a second
cross-border controlled delivery with Mexican authorities on October 4, 2007. That
operation also failed to lead to the successful capture of the subject in Mexico.®
That same day, Assistant Director Hoover sent an email to Assistant Director
Carroll and ATF-Phoenix Field Division Special Agent in Charge William Newell
demanding a cal! to discuss the investigation;
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Have we discussed the strategy with the US Attorney's Office re
letting the guns walk? Do we have this approval in writing? Have
we discussed and thought thru the consequences of same? Are we
tracking south of the border? Same re US Attorney's Office. Did we
find out why they missed the handoff of the vehicle? What are our
expected outcomes? What is the timeline?®^
The next day. Assistant Director Hoover wrote Mr. Carroll again:
I do not want any firearms to go South until further notice. 1 expect
a full briefing paper on my desk Tuesday morning from SAC Nervell
with every question answered. I will not allow this case to go fortvard
until we have written documentation from the U.S. Attorney's Office
re full and complete buy in. 1 do not want anyone briefed on this case
until I approve the information. This includes anyone in Mexico.*^
Mr. Hoover's concerns seem to have temporarily halted controlled delivery
operations in the Hernandez investigation. On October 6, 2007, Special Agent in
Charge Newell wrote to Assistant Director Carroll:
Tm so frustrated with this whole mess Tm shutting the case down and
any further attempts to do something similar. We're done trying to
pursue new and innovative initiatives— it's not worth the hassle."®
Nevertheless, Mr. Newell insisted that he did have approval from the U.S.
Attorney's Office. He wrote:
We DO have them [the U.S. Attorney's Office] on board and as a matter
of fact they (Chief of Criminal John Tucchi) recently agreed to charge
the firearms recipients in Mexico (if we could fully [ID] them via a
controlled delivery) with a conspiracy charge in US court."®
Despite the concerns expressed by Assistant Director Hoover, ATF
operational plans show that additional controlled deliveries were planned for
October 18, November 1, and November 26-27, 2007.*' The documents describe
ATF plans to observe the purchases at the FFL, follow the suspects "from the FFL in
Phoenix, AZ to the Mexican port of entry in Nogales, Arizona," allow the suspects to
"cross into Mexico," and allow "Mexican authorities to coordinate the arrest of the
subjects."®
Attorney General Mukasey briefed and asked to "expand" operations
In the midst of these ongoing operations, on November 16, 2007, Attorney
General Michael Mukasey received a memorandum in preparation for a meeting
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35
with Mexican Attorney General Medina Mora. The memo described the Hernandez
case as "the first ever attempt to have a controlled delivery of weapons being
smuggled into Mexico by a major arms trafficker."**' The briefing paper warned
the Attorney General that "the first attempts at this controlled delivery have not
been successful.'"'" Despite these failures, the memorandum sought to expand such
operations in the future:
ATF would like to expand the possibility of such joint investigations
and controlled deliveries — since only then will it be possible to
investigate an entire smuggling network, rather than arresting simply
a single smuggler."’
This briefing paper was prepared by senior officials at ATF and the
Department of Justice only weeks after Assistant Director Hoover had expressed
serious concerns with the failure of these tactics.’^
The emails exchanging drafts of the Attorney General's briefing paper
also make clear that ATF officials understood that these were not, in fact, the
first operations that allowed guns to "walk." Assistant Director Carroll wrote to
Assistant Director Hoover: "I am going to ask DOJ to change 'first ever' . . . there
have [been] cases in the past where we have walked guns.""’ That change never
made it into the final briefing paper for Attorney General Mukasey.
Ten days after Attorney General Mukasey was notified about the failed
surveillance operations and was asked to expand the use of the cross-border gun
operation.s, ATF agents planned another surveillance operation in coordination with
Mexico. The Operational Plan stated:
1) Surveillance units will observe [redacted] where they will attempt to
confirm the purchase and transfer of firearms by known targets.
2) Once the transfer of firearms is confirmed through surveillance,
units will then follow the vehicle and its occupants from the FFL in
Phoenix, AZ to the Mexican port of entry in Nogales, Arizona. Once
the subjects cross into Mexico, ATF attaches will liaison with Mexican
authorities to coordinate the arrest of the subjects.
3) ATF agents will not be involved with the arrest of the subjects in
Mexico but will be present to coordinate the arrest efforts between
surveillance units and Mexican authorities as well as to conduct post-
arrest interviews.'"
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36
As part of this operation, surveillance units were monitoring the FFL during
normal business hours in order to observe large firearms transfers by their known
targets,®
The Committee has not received any documents indicating that ATF-Phoenix
agents were able to successfully coordinate
with Mexican law enforcement to interdict
firearms in the Hernandez case. During
the course of the investigation, Hernandez
and his co-conspirators purchased more
than 200 firearms. In multiple instances,
ATF agents witnessed Hernandez and his
associates take these weapons into Mexico.*
Hernandez and his a.ssociate were
arrested in Nogales, Arizona on November
27, 2007, while attempting to cross the
border into Mexico.® The defendants
were charged with Conspiracy to Export
Firearms, Exporting Firearms, and two
counts of Attempted Exportation of
Firearms. The defendants were brought to
trial in 2009, but acquitted after prosecutors
were unable to obtain the cooperation
of the Mexican law enforcement officials
who had recovered firearms purchased by
Hernandez. An ATF briefing paper from 2009 summarized the result:
The judge also would not allow us to introduce evidence of how the
guns were found in Mexico unless we could produce the Mexican
Police Officials who located the guns. VVe were unable to obtain the
cooperation of Mexican law enforcement to identify and bring these
witnesses to trial to testify.*
At the conclusion of the trial, the jury was unable to reach a verdict on three
counts of the indictment and the defendants were acquitted on a fourth charge.'”
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37
2006-07 2007 2009-10
3. I'lie Medrano Case (2008)
In February 2008, ATF agents in Phoenix began investigating a straw
purchasing network led by Alejandro Medrano. Documents obtained by the
Committee indicate that on multiple occasions throughout 2008, ATF agents were
aware that Medrano and his associates were making illegal firearms purchases
and trafficking the weapons into Mexico. According to documents obtained by the
Committee, ATF-Phoenix did not arrest suspects for approximately one year while
their activities continued, instead choosing to continue surveillance. During the
summer of 2008, agents from U.S, Immigrahon and Customs Enforcement (ICE)
raised concerns about the tactics being used, but the tactics continued for several
more months. On December 10, 2008, a criminal complaint was filed against
Medrano and his associates in the United States District Court for the District of
Arizona, and the targets were later sentenced to varying prison sentences.
ATF agents watched as firearms crossed the border
An ATF-Phoenix Operational Plan obtained by the Committee describes an
instance on June 17, 2008, in which ATF agents watched Medrano and an associate,
Hernan Ramos, illegally purchase firearms at an FFL in Arizona, load them in their
car, and smuggle them into Mexico:
Agents observed both subjects place the firearms in the backseat and
trunk [of a vehicle]. Agents and officers surveilled the vehicle to
Douglas, AZ where it crossed into Mexico at the Douglas Port of Entry
(POE) before a stop could be coordinated with CBP [Customs and
Border Protection].’®
Neither Medrano nor Ramos was arrested or detained at the time or in the
months after. The Operational Plan does not include any indication that ATF agents
attempted to coordinate with Mexican law enforcement. The fact that the suspects
continued to make firearms purchases in the United States and take them to Mexico
suggests that they were not intercepted by Mexican law enforcement.
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38
In the two months following these surveillance operations, Medrano and
his co-conspirators purchased several additional firearms at gun shows and from
FFLs in the Phoenix area.'*” The suspects also continued to travel back and forth to
Mexico.*”^ The ATF Operational Plan also stated:
The group particularly targeted gun shows where several members
purchased firearms from various FFUS. According to TECS [the
Treasury Enforcement Communications System, a government
database used to track individuals' travel patterns], identified subjects
routinely crossed into Mexico prior to and following a large number
of firearms purchases. While only purchasing a small number of
firearms, MEDRANO crossed into Mexico utilizing several vehicles
that were not registered to him or his immediate family. MEDRANO
routinely returned to the US on foot while other identified subjects
drove a vehicle into the US, It is believed that identified subjects
entering the US on foot were carrying bulk cash to pay for future
firearms.*™
According to the Operational Plan, multiple firearms connected to the
network were recovered in Mexico, some very soon after they were sold:
Flernan RAMOS purchased a 7.62 caliber rifle in February 2008 that
was recovered in June 2008. Jose ARIZMENDIZ purchased two pistols
that were recovered at the same location in Mexico. One of the pistols
had a time to crime of fifteen (15) days."”
ICE agents raised concerns
Documents obtained by the Committee indicate that in the summer of 2008,
ATF agents handling the Medrano investigation met with ICE agents to coordinate
surveillance of another cross-border smuggling attempt. At this meeting, ICE agents
balked when they learned about the tactics being employed by ATF-Phoenix. On
August 12, 2008, the head of ICE's offices in Arizona wrote to ATF Special Agent in
Charge Newell asking for an in-person meeting about the dispute among agents
over ATF operational plans to allow straw purchased guns to cross the border:
One of [the ICE] groups worked with your guys over the weekend on
a surveillance operation at a Tucson gun show. While we had both
met in advance with the USAO, our agents left that meeting with the
understanding that any weapons that were followed to the border
would be seized. On Friday night, however, our agents got an op
plan that stated that weapons would be allowed to go into Mexico for
further surveillance by LEAs [law enforcement agents] there."”
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39
In his response, Mr. Newell acknowledged that letting guns cross the border
was part of ATF's plan, but stated that he needed more information about what had
happened:
I need to get some clarification from my folks tomorrow because 1 was
told that your folks were aware of the plan to allow the guns to cross,
in close cooperation with both our offices in Mexico as well as Mexican
Feds.'®"
Although the subsequent correspondence does not explain how this dispute
was resolved, the Medrano trafficking network reportedly supplied over 100
assault rifles and other weapons "to a member of the Sinaloan drug cartel known as
'Rambo,'"'"'
Criminal complaint also confirms "gunwalking"
On December 10, 2008, Federal prosecutors filed a complaint in the United
States District Court for the District of Arizona that describes in detail gun
trafficking activities conducted by Medrano and his associates that involved more
than 100 firearms over the course of the year. The complaint confirms that ATF
agents watched as Medrano and his associates trafficked illegal firearms into Mexico.
For example, the complaint discusses the incident on June 17, 2008, discussed above,
in which ATF agents observed the suspects purchase weapons, load them in their
car, and drive them to Mexico. The complaint states:
On or about June 17, 2008, at or near
Tucson, Arizona, Alejandro Medrano
and Hernan Ramos went together
to Mad Dawg Global, a federally
licensed firearms dealer, where
Hernan Ramos purchased six (6)
.223 caliber rifles for approximately
$4800.00 and falsely represented
on the 4473 that he was the actual
purchaser. Both Alejandro Medrano
and Hernan Ramos placed the six
(6) rifles in the back seat of their
vehicle.'”*
The complaint then explains that the
suspects drove these firearms across the
border. It states:
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40
Alejandro Medrano drove Heman Ramos's vehicle with Hernan
Ramos as a passenger from Mad Dawg Global in Tuscon, Arizona, to
the Douglas Port of Entry where they both entered into Mexico with at
least the six (6) ,223 caliber rifles in the vehicle.’'”
The complaint states that the information was obtained by ATF agents
conducting surveillance:
ATF Special Agents conducted surveillance, recorded firearms
transactions, and identified the dates and times that the conspirators
herein crossed the international border either in vehicles or on foot.’"’
The complaint also describes how quickly Medrano and his associates
traveled back and forth between the United States and Mexico for additional firearm
purchases. For example, in one instance on May 21, 2008, Hernan Ramos entered
the United States and returned to Mexico "less than two hours later in the same
vehicle," The complaint also states that in another instance on August 13, 2008,
Medrano and an associate entered the United States "driving a vehicle which had
entered into Mexico approximately fifteen minutes earlier."’"
On August 9, 2010, Medrano was "sentenced to 46 months in prison for his
leadership role in the conspiracy."”^ Ramos was sentenced to 50 months in prison
and "[mjost of the remaining defendants in the conspiracy received prison terms
ranging from 14 to 30 months."”’ Many of fhe firearms purchased by the Medrano
network were subsequently recovered in Mexico.'”
2006-07 2007
2008 2009-10
4. Operation Fast and Furious (2009-10)
The investigation that became known as Operation Fast and Furious began
in the ATF Phoenix Field Division in October 2009, Despite having identified 20
suspects who paid hundreds of thousands of dollars in cash to buy hundreds of
military-grade firearms on behalf of the same trafficking ring, ATF-Phoenix and
the Arizona U.S. Attorney's Office asserted that they lacked probable cause for any
arrests. Three months into the investigation, they agreed instead on a broader
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41
strategy to build a bigger case against cartel leaders, rather than straw purchasers,
through long-term surveillance and wiretaps. While they pursued this broader
strategy, ATF-Phoenix agents did not interdict hundreds of firearms purchased and
distributed by the suspects under their surveillance. In March 2010, the Deputy
Director of ATF became concerned with the operation and ordered an "exit" strategy
to bring indictments within 90 days. The documents indicate that ATF-Phoenix field
agents chafed against this directive, however, and allowed suspect purchases to
continue for months in an effort to salvage the broader goal of the investigation. In
January 2011, the U.S. Attorney's Office indicted 19 straw purchasers and the local
organizer of the network, all of whom had been identified at the beginning of the
investigation in 2009.
Initiated by ATF-Phoenix in the Fall of 2009
According to documents obtained by the Committee, the investigation that
became known as Operation Fast and Furious started in October 2009 when ATF
agents received a tip that four suspected straw purchasers had acquired numerous
AK-47 style rifles from the same gun dealer. ATF also received a tip about a man
named Uriel Patino who had purchased numerous AK-47 rifles from the same
dealer.”^
The next month, ATF
identified six additional
suspected straw purchasers and
two local properties that were
being utilized as firearm drop
locations."*’ On November
20, 2009, some of the guns
purchased by the suspects
were recovered in Naco,
Mexico, including firearms
with a "short time to crime."
Two additional suspects were
identified based on the firearms
recovered in Naco.'"
The case continued to grow in December with the identification of seven
additional suspected straw purchasers and Manuel Cclis-Acosta, a suspect
connected to a large-scale Drug Enforcement Administration (DEA) investigation."*'
A Briefing Paper prepared by ATF-Phoenix noted the size of the organization
and the rapid pace of firearm purchases in those initial months of the investigation.
It stated:
ATF-Phoenix presentation on Fast and Furious
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42
It should also be noted that the pace of firearms procurement by this
straw purchasing group from late September to early December, 2009
defied the "normal" pace of procurement by other firearms trafficking
groups investigated by this and other field divisions. This "blitz" was
extremely out of the ordinary and created a situation where measures
had to be enacted in order to slow this pace down in order to perfect a
criminal case."’
The Briefing Paper stated that the investigation had identified more than 20
individual straw purchasers, all connected to the same trafficking ring, who "had
purchased in excess of 650 firearms (mainly AK-47 variants) for which they have
paid cash totaling more than $350,000.00"'“
Prosecutors claimed no probable cause to arrest straw buyers
According to documents obtained by the Committee, on January 5, 2010,
ATF-Phoenix officials working on the investigation had a meeting with the lead
prosecutor on the case, Arizona Assistant U.S. Attorney Emory Hurley. The ATF
agents and the prosecutor wrote separate memos following the meeting reflecting
a consensus that no probable cause existed to arrest any of the straw purchasers
despite the significant number of firearms that had been purchased. The ATF-
Phoenix Briefing Paper, prepared three days after the meeting, stated:
On January 5, 2010, ASAC Gillett, GS [Group Supervisor] Voth, and
case agent SA MacAllister met with AUSA Emory Hurley who is the
lead federal prosecutor on this matter. Investigative and prosecutions
strategies were discussed and a determination was made that there
was minimal evidence at this time to support any type of prosecution;
therefore, additional firearms purchases should be monitored and
additional evidence continued to be gathered. This investigation was
briefed to United States Attorney Dennis Burke, who concurs with the
assessment of his line prosecutors and fully supports the continuation
of this investigation.'^'
Similarly, the prosecutor wrote a memo to his direct supervisor, stating: "We
have reviewed the available evidence thus far and agree that we do not have any
chargeable offenses against any of the players."'^
During a transcribed interview with Committee staff, the ATF-Phoenix Group
Supervisor who oversaw the operation and participated in the meeting explained
that he had to follow the prosecutor's probable cause assessment:
1 don't think that agents in Fast and Furious were forgoing taking
action when probable cause existed. We consulted with the U.S.
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43
Attorney's OfSice, And if we disagree, I guess we disagree. But if the
U.S. Attorney's Office says we don't have probable cause, I think that
puts us in a tricky situation to take action independent, especially if
that is contradictory to their opinion.’^
In another exchange, the Group Supervisor explained the prosecutor's
assessment with respect to Uriel Patino, the single largest suspected straw purchaser
in the Fast and Furious network:
Q: Does that meet your understanding of probable cause to
interdict a gun when Uriel Patino goes in for the fifth or sixth
or 12th time to purchase more and more guns with cash?
A: We talked that over at the U.S. Attorney's Office, and the
conclusion was that we would need independent probable
cause for each transaction. Just because he bought 10 guns
yesterday doesn't mean that the 10 he is buying today are
straw purchased. You can't transfer probable cause from
one firearm purchase to the next firearm purchase. You need
independent probable cause for each occurrence.
Q; And it doesn't matter not just that he bought 10 last week
and 20 the week before, but that five of them ended up in
Mexico at a crime scene, at a murder?
A: Again, in talking to the U.S. Attorney's Office, unless we
could prove that he took them to Mexico, the fact that he
sold them or transferred them to another [non-prohibited]
party doesn't necessarily make him a firearms trafficker. If
he sells them to his neighbor lawfully and then his neighbor
takes them to Mexico, it is the neighbor who has done the
illegal act, not Patino, who sold them to his neighbor.'"
Although the determination of whether sufficient probable cause existed
to make arrests ultimately rested with the prosecutor, documents obtained by the
Committee indicate that all of the participants agreed with the strategy to proceed
with building a bigger case and to forgo taking down individual members of the
straw purchaser network one-by-one. The ATF Briefing Paper stated:
Currently our strategy is to allow the transfer of firearms to continue
to take place albeit, at a much slower pace, in order to further the
investigation and allow for the identification of additional co-
conspirators who would continue to operate and illegally traffic
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firearms to Mexican DTOs [drug trafficking organizations] which are
perpetrating armed violence along the Southwest Border.'^-
During his transcribed interview with Committee staff. Special Agent in
Charge Newell explained:
[Tlhe goal was twofold. It was to identify the firearms-trafficking
network, the decision-makers, and not just focus on the straw
purchasers. We would go after the decision-makers, the people who
were financing.'®
He stated that it was critical to identify the network rather than arresting
individual straw purchasers one-by-one:
The goal of the investigation, as I said before, was to identify the whole
network, knowing that if we took off a group of straw purchasers this,
as is the case in hundreds of firearms trafficking investigations, some
that I personally worked as a case agent, you take off the low level
straw purchaser, all you're doing is one of - you're doing one of two
things, one of several things. You're alerting the actual string-puller
that you're on to them, one, and, two, all they are going to do is go out
and get more straw purchasers.
Our goal in this case is to go after the decision-maker, the person at the
head of the organization, knowing that if we remove that person, in the
sense of prosecute that person, successfully, hopefully, that we would
have much more impact than just going after the low-level straw
purchaser.'^'’
Prosecutor encouraged U.S. Attorney to "hold out for bigger" case
In addition to finding no probable cau.sc fo arrest suspected straw
purchasers who had already purchased hundreds of firearms, the lead prosecutor
recommended against employing traditional investigative tactics against the
suspects. In a memorandum to his supervisor on January 5, 2010, Mr. Hurley wrote:
In the past, ATF agents have investigated cases similar to this by
confronting the straw purchasers and hoping for an admission that
might lead to charges. This carries a substantial risk of letting the
members of the conspiracy know that they are the subject of an
investigation and not gain any u.seful admissions from the straw buyer.
In the last couple of years, straw buyers appear to be well coached
in how to avoid answering question about firearms questions. Even
when the straw buyers make admissions and can be prosecuted, they
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45
are easily replaced by new straw buyers and the flow of guns remains
unabated.'^*
The lead prosecutor noted that ATF-Phoenix was aware that ATP
headquarters would likely object to both the strategy of trying to build a bigger case
and the proposal to forgo using traditional law enforcement tactics:
ATP [Phoenix] believes that there may be pressure from ATP
headquarters to immediately contact identifiable straw purchasers
just to see if this develops any indictable cases and to stem the flow
of guns. Local ATP favors pursuing a wire and surveillance to build
a case against the leader of the organization. If a case cannot be
developed against the hub of the conspiracy, he will be able to replace
the spokes as needed and continue to traffic firearms, I am familiar
with the difficulties of building a case only upon the interviews of a
few straw purchasers and have seen many such investigations falter
at the first interview. 1 concur with Local ATP's decision to pursue a
longer term investigation to target the leader of the conspiracy.'®
Later the same day, January 5, 2010, the lead prosecutor's supervisor
forwarded the memorandum to U.S. Attorney Dennis Burke, recommending that he
agree to both the strategy and tactics. The supervisor's email to Mr. Burke stated;
Dennis— Joe Lodge has been briefed on this but wanted to get you
a memo for your review. Bottom line - we have a promising guns
to Mexico case (some weapons already seized and accounted for),
local ATP is on board with our strategy but ATP headquarters may
want to do a smaller straw purchaser case. We should hold out for
the bigger case, try to get a wire, and if it fails, we can always do the
straw buyers. Emory's memo references that this is the "Naco, Mexico
seizure case" — you may have seen photos of that a few months ago.'®
Mr. Burke responded two days later with a short message; "Hold out for
bigger. Let me know whenever and w/ whomever 1 need to weigh-in.
Although Mr. Burke agreed with the proposal to target the organizers of the
firearms trafficking conspiracy, he told Committee staff that neither ATF-Phoenix
nor his subordinates suggested that agents would be letting guns walk as part of the
investigation. As discussed in Section C, below, Mr. Burke stated in his transcribed
interview that he was under the impres.sion that ATF-Phoenix was coordinating
interdictions with Mexican officials. Mr. Burke stated:
I was under the opposite impression, which was that based on his [Mr.
Newell's] contacts and the relationships with Mexico and what they
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46
were doing, that they would be working with Mexico on weapons
transferred into Mexico.
According to documents obtained by the Committee, Mr. Burke also received
explicit assurances from the lead prosecutor on the case, Mr. Hurley, that ATF-
Phoenix agents "have not purposely let guns 'walk.'"*”
ATF-Phoenix sought funding and wiretaps to target higher-level
suspects
To secure additional resources for Operation Fa.st and Furious, including
agents, funding, and sophisticated investigative tools, ATF-Phoenix requested
funding from the Organized Crime Drug Enforcement Task Forces (OCDETF)
Program, which provides funding "to identify, disrupt, and dismantle the most
serious drug trafficking and money laundering organizations and those primarily
responsible for the nation's drug supply."*^*
In January 2010, ATF-Phoenix submitted an investigativ'e strategy in its
application for funding from OCDETF. ATF-Phoenix and the U.S. Attorney's
Office used evidence gathered from another agency's investigation to draft its
proposal.'^" The application explained that the goal Operation Fast and Furious was
to bring down a major drug trafficking cartel:
The direct goal of this investigation is to identify and arrest members
of the CONTRERAS DTO [Drug Trafficking organization] as well as
seize assets owned by the DTO. Based upon the amount of drugs
this organization distributes in the US it is anticipated that the
investigation will continue to expand to other parts of the US and
enable enforcement operations in multiple jurisdictions. In addition
to the CONTRERAS DTO, this investigation is intended to identify
iind expand to the hierarchy within the Mexico-based drug trafficking
organization that directs the CONTRERAS DTO.”*’
ATF-Phoenix's proposal for Operation "The Fast and the Furious" was
approved by an interagency group of Federal law enforcement officials in Arizona in
late January 2010.'”
ATF-Phoenix also drafted a proposal to conduct a wiretap with the goal of
obtaining evidence to connect the straw purchasers to the leaders of the firearms
trafficking conspiracy.*” During his transcribed interview with Committee staff, U.S.
Attorney Burke explained the purpose behind this wiretap application:
[Tlhe belief was, at least in I think January 2010, was when they first,
my recollection is that they first started referencing the interest in
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47
getting the [wiretap]. But the point being that they were going to try to
reach beyond just the straw purchasers and figure out who the actual
recruiters were and organizers of the gun trafficking ring.'®
ATF-Phoenix submitted its wiretap application with the necessary affidavits
and approvals from the Department of Justice, Office of Enforcement Operations,
and received federal court approval for its first wiretaps.
ATF-Phoenix agents watched guns walk
Documents obtained by the Committee indicate that while ATF-Phoenix
and the U.S. Attorney's Office pursued their strategy of building a bigger case
against higher-ups in the firearms trafficking conspiracy, ATF-Phoenix field agents
continued daily surveillance of the straw purchaser network. With advance or real-
time notice of many purchases by the cooperating gun dealers, the agents watched
as the network purchased hundreds of firearms. One ATF-Phoenix agent assigned
to surveillance described a common scenario:
[A] situation would arise where a known individual, a suspected straw
purchaser, purchased firearms and immediately transferred them or
shortly after, not immediately, shortly after they had transferred them
to an unknown male. And at that point I asked the case agent to, if we
can intervene and seize those firearms, and I was told no.'®
When asked about the number of firearms trafficked in a given week, one
agent amswered:
Probably 30 or 50. It wasn't five. There were five at a time. These
guys didn't go to the FFLs unless it was five or more. And the only
exceptions to that are sometimes the Draco, which were the AK-variant
pistols, or the FN Five-seveN pistols, because a lot of FFLs just didn't
have ... 10 or 20 of those on hand.'®
Agents told the Committee that they became increasingly alarmed as this
practice continued, which they viewed as a departure from both protocol and their
expectations as law enforcement officials. One agent stated:
We were walking guns. It was our decision. We had the information.
We had the duty and the responsibility to act, and wo didn't do so.
So it was us walking those guns. We didn't watch them walk, we
walked.'®
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ATF Deputy Director Hoover ordered an "exit strategy"
The documents obtained and interviews conducted by the Committee
indicate that, following a briefing in March 2010, ATF Deputy Director William
Hoover ordered an "exit strategy" in order to extract ATF-Phoenix from this
operation. At the March briefing, the ATF Intelligence Operations Specialist and
the Group Supervisor made a presentation regarding Operation Fast and Furious
that covered the suspects, the number of firearms each had purchased, the amount
of money each had spent, the known stash houses where guns were deposited,
and the locations in Mexico where Fast and Furious firearms had been recovered.
The briefing also included Assistant Director for Field Operations Mark Chait and
Deputy Assistant Director for Field Operations William McMahon, four ATF Special
Agents in Charge from ATF's Southwest border offices, and others.
In his transcribed interview with Committee staff. Deputy Director Hoover
stated that he became concerned sometime after the briefing about the number of
guns being purchased and ordered an "exit strategy" to dose the case and seek
indictments within 90 days:
Q: It's our understanding that you and Mr. Chait, in March
approximately, asked for an exit strategy for the case?
A: That is correct. ...
Q: And if you could tell us what led to that request?
A: We received a pretty detailed briefing in March, I don't
remember the specific date, Tm going to say it's after the
15th of March, about the investigation, about the number
of firearms purchased by individuals. ... That would have
been by our Intel division in the headquarters. ... During
that briefing I was, you know, just jotting some notes. And I
was concerned about the number of firearms that were being
purchased in this investigation, and 1 decided that it was
time for us to have an exit strategy and I asked for an exit
strategy. It was a conversation that was occurring between
Mark Chait, Bill McMahon and myself. And 1 asked for the
exit strategy 30, 60, 90 days, and I wanted to be able to shut
this investigation down.
Q: And by shutting the investigation down, you were interested
in cutting off the sales of weapons to the suspects, correct?
A: That's correct.
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49
Q: And you were worried, is it fair to say, that these guns were
possibly going to be getting away and getting into Mexico
and showing up at crime scenes?
A: I was concerned not only that that would occur in Mexico,
but also in the United States.”'^
Other than requesting an exit strategy, Mr. Hoover did not recall making any
other specific demands because he generally "allowed field operations to run that
investigation."
ATF-Phoenix did not follow the 90-day exit strategy and continued
the operation
In April 2010, more than one month after Deputy Director Hoover's demand
for an exit strategy, ATF-Phoenix still had not provided it, and Special Agent in
Charge Newell expressed his frustration with perceived interference from ATF
headquarters that he believed could prevent him from making a larger case. In an
April 27, 2010, email to Deputy Assistant Director McMahon, he wrote:
I don't like HQ driving our cases but understand the "sensitivities"
of this case better than anyone. We don't yet have the direct link to
a DTO that we want/need for our prosecution, [redacted]. Once we
establish that link we can hold this ca.se up as an example of the link
between narcotics and firearms trafficking which would be great on a
national media scale but if the Director wants this case shut down then
so be it.’*’
Although Mr. Newell delivered an exit strategy that day at Mr. McMahon's
reminder, the operation continued to grow and expand rather than wind down over
the months to follow.'“ In June 2010, three months after Deputy Director Hoover's
directive, the operational phase of the case was still continuing. On June 17, 2010,
the ATF-Phoenix Group Supervisor received an email from a cooperating gun dealer
raising concerns about how the firearms he was selling could endanger public safety.
The dealer stated:
As per our discussion about over communicating I wanted to share
some concerns that came up. Tuesday night I watched a segment of
a Fox News report about firearms and the border. The segment, if
the information was correct, is disturbing to me. When you, Emory
and I met on May 13'*' I shared my concerns with you guys that 1
wanted to make sure that none of the firearms that were sold per our
conversation with you and various ATF agents could or would ever
end up south of the border or in the hands of the bad guys. I guess I
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50
am looking for a bit of reassurance that the guns are not getting south
or in the wrong hands. I know it is an ongoing investigation so there
is limited infomiation you can share with me. But as 1 said in our
meeting, I want to help ATF with its investigation but not at the risk of
agents safety because I have some very close friends that are US Border
Patrol agents in southern AZ as well as my concern for all the agents
safety that protect our country.”’
A month later, on July 14, 2010, Special Agent in Charge Newell sent an email
to an ATF colleague in Mexico stating that ATF was "within 45-60 days of taking
this [Operation Fast and Furious] down IF the USAO goes with our 846/924(c)
conspiracy plan."'® At that time, the case was still months away from indictment.
In August 2010, the operation continued, with another cooperating gun dealer
writing to the ATF-Phoenix Group Supervisor seeking advice about a large purchase
order made by Uriel Patino, who personally purchased more than 600 assault
weapons from a small handful of cooperating gun dealers. The dealer stated:
One of our associates received a telephone inquiry from Uriel Patino
today. Uriel is one of the individuals your office has interest in, and he
looking to purchase 20 FN-FNX mm firearms. We currently have 4 of
these firearms in stock. If we are to fulfill this order we would need to
obtain the additional 16 specifically for this purpose.
1 am requesting your guidance as to weather [sic] or not we should
perform the transaction, as it is outside of the standard way we have
been dealing with him.'-”
The Group Supervisor wrote back requesting that the gun dealer fulfill the order:
[0]ur guidance is that we would like you to go through with Mr.
Patino's request and order the additional firearms he is requesting,
and if possible obtain a partial down payment. This will require
further coordination of exact details but again we (ATF) are very much
interested in this transaction and appreciate your [] willingness to
cooperate and assist us.'”
During a transcribed interview with Committee staff, another cooperating
gun dealer explained that ATF agents had promised to address the concerns he
raised about their capability to interdict these weapons:
I was assured in no uncertain terms— and let me be straight about this.
She assured that they would have enough agents on sight to surveil the
sale and make sure that it didn't get away from them, as it was stated
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51
to me. ... To continue, we went along with these sales at their request.
ATF would want us to continue with them, and we did so.’’^
Indictments delayed for months
By August 2010, rather than indicting the suspects in Operation Fast and
Furious, ATF-Phoenix and the prosecutor were still in the process of compiling
evidence to make indictment decisions. During his transcribed interview with
Committee staff. Special Agent in Charge Newell stated:
Well, the next phase in the investigation, it really moves from an
investigation phase to prosecution phase at that point in the sense
of getting the case ready for indictment. So I know that the case
agent ... as well as the others were meeting regularly with the AUSA
Emory Hurley, compiling all the different pieces of evidence specific
to each individual prospective defendant, to get to a point where we
met what we felt in conjunction with the U.S. Attorney's Office, in
coordination with them, that met the burden of proof to be able to seek
an indictment.'^'
Mr. Newel! stated that he understood that this process of "compiling"
evidence takes significant time and, as a result, "we were hoping to get indictments
in, as I recall, I think it was maybe October, November roughly."'=^ Mr, Newell
attributed the delay in the indictments to "a combination of workload [at the U.S.
Attorney's Office] and the fact that there was a lot of work that needed to be done as
far as putting the charges together,"'*''
In contrast, U.S. Attorney Burke informed Committee staff that the delay in
the indictments was because ATF-Phoenix failed to produce to the prosecutor the
completed case file until October 2010:
There is a formal process when an agency gives us a case with their
cover, and the actual full documentation of the case was given to us,
our office in October 2010, and I believe it was represented that it was
given to us in August 2010.'*'
On January 19, 2011, ten months after Deputy Director Hoover ordered an
exit strategy, the U.S, Attorney's Office filed an indictment against Manuel Celis-
Acosta and 19 straw purchasers that included counts for conspiracy, dealing in
firearms without a license, conspiracy to possess a controlled substance with intent
to distribute, possession with intent to distribute marijuana, conspiracy to possess
a firearm in furtherance of a drug trafficking offense, false statements in connection
with acquisition of firearms, conspiracy to commit money laundering, money
laundering, and aiding and abetting.'**
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52
Fast & Furious Investigation
Firearm Recoveries
Department of Justice, Report of Firearms Recoveries as of Indictment of Suspects (Jan. 21, 2011)
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53
B. Challenges Specific to the Arizona
U.S. Attorney's Office
Numerous ATF agents in Phoenix and senior ATF officials in Washington,
D.C. informed the Committee that the U.S. Attorney's Office in Arizona historically
has been reluctant to prosecute firearms traffickers. Due to the Federal prosecutors'
analysis of heightened evidentiary thresholds in their district, agents reported that
they faced significant challenges over the course of many years getting the U.S.
Attorney's Office in Arizona to arrest, prosecute, and convict firearms traffickers.
"Viewed as an obstacle more than a help"
In testimony before the Committee, ATF Special Agent Peter Forcelli stated
that within a few weeks of transferring to the Phoenix Field Division from New York
in 2007, he noticed a difference in how Federal prosecutors in Arizona handled gun
cases:
In my opinion, dozens of firearms traffickers were given a pass by the
U.S. Attorney's Office for the District of Arizona, Despite the existence
of "probable cause" in many cases, there w'ere no indictments, no
prosecutions, and criminals were allowed to walk free,'’’
Special Agent Forcelli testified that "this situation wherein the United States
Attorney's Office for Arizona in Phoenix declined most of our firearms cases, was at
least one factor which led to the debacle that's now known as 'Operation Fast and
Furious.'"'® lie added that little improvement has been made to date:
I would say, if anything, we have gone from a 'D-minus' to maybe a
'D.' It is still far from, again, effective or far from what, you know, the
taxpayers deserve. But it is still very bad. I mean I wouldn't say it is
effective. ... Guns in the hands of gang members or cartel traffickers,
that's pretty concerning.''"
Fie added: "the U.S. Attorney's Office is kind of viewed as an obstacle more
than a help in criminal prosecutions here in Arizona, here in the Phoenix area.''""
In his transcribed interview with Committee staff. Acting ATF Director
Kenneth Melson stated that Arizona historically has been a very difficult place to
prosecute firearms traffickers. He stated:
A: We have had, as Peter Forcelli said, a long history with the
District of Arizona going back to Paul Charlton, if not earlier,
where it w'as difficult to get these cases prosecuted. Diane
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54
Humetewa was the second U.S. Attorney there who had
issues with our cases and wouldn't prosecute. I was head of
the Executive Office for U.S. Attorneys at the time. I knotv
exactly what was going on there and the issues we had with
getting cases prosecuted in the District of Arizona.
Q: What was going on there?
A: Well, they—
Q: Were they prosecuting gun cases?
A: No, no. And they had a limit— for example, they wouldn't
take any case that had less than 500 pounds of marijuana
coming across the border with people in custody of it. We
had to take some of our most significant cases to the state
courts to try because they wouldn't take them,
Q: So is it fair to say there was a frustration— I believe you said
earlier there was a frustration and aggravation with the
Arizona U.S. Attorney's office, is that fair?
A: Yes, I think there was a frustration. Peter Forcelli said it
really like it was. Let me say it, Dennis Burke has really
made a change in the office. And he has turned that office
around, maybe not 180 degrees but he's getting there.
He's at least at 45 or 50 degrees. We have gotten more
prosecutions out of his office than before, but historically, we
have had a real hard time getting prosecutions. And when
we do, we get no sentences. The guidelines are so low.’*^^
Evidentiary thresholds in Arizona
According to ATF officials, prosecutors in the Arizona U.S. Attorney's Office
insisted that they could not prosecute firearms cases without physical possession
of the firearms at issue. The prosecutors referred to this as the doctrine of corpus
delicti ("body of the crime"). Because it was difficult to get Mexican authorities
to cooperate in returning recovered firearms from that country, agents claimed that
this created an effective bar to prosecution of many trafficking suspects. Agents told
the Committee that prosecutors in the Arizona U.S. Attorney's Office applied the
corpus delicti doctrine to refuse to prosecute cases even when suspects confessed to
committing the crime.'®
ATF counsel strongly disagreed with the U.S. Attorney's Office that firearms
had to be present to prove that straw purchasers had lied on the Federal forms they
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55
filled out when purchasing firearms. According to Special Agent in Charge Newell,
the other other U.S. Attorneys' offices in his jurisdiction — New Mexico, Colorado,
Wyoming, and Utah— did not share Arizona's interpretation of this evidentiary
standard.
On February 24, 2010, ATF counsel prepared a memorandum criticizing
the corpus delicti doctrine as interpreted by the Arizona U.S. Attorney's Office. The
memo stated;
In furtherance of ATF's primary investigative authority and the
Southwest Border Initiative, ATF agents spend a very significant
number of hours — and often place themselves in dangerous
circumstances— investigating alleged straw transactions as part of
firearms trafficking cases. In recent years, few of these investigations
have resulted in Federal prosecutions in the District of Arizona. It
is our desire to work with your office to adjust the scope of our
investigations and/or our investigative procedures to provide straw
purchaser cases that fall within the prosecution guidelines of your
office.’®
According to ATF agents in Phoenix, the U.S. Attorney's Office also
established additional evidentiary hurdles that made prosecuting firearms cases
difficult, including requiring independent evidence of illegality for each firearms
transaction. According to ATF agents, prosecutors would not build a case based on
a pattern of multiple successive firearms purchases followed in quick succession
by trips to Mexico. Instead, agents had to prove that each transaction, standing by
itself, was illegal. The ATF-Phoenix Group Supervisor for Fast and Furious told the
Committee how this policy applied:
We talked that over at the U.S. Attorney's Office, and the conclusion
was that we would need independent probable cause for each
transaction. Just because he bought 10 guns yesterday doesn't
mean that the 10 he is buying today are straw purchased. You
can't transfer probable cause from one firearm purchase to the next
firearm purchase. You need independent probable cause for each
occurrence.””*
The ATF Group Supervisor explained that application of this requirement
meant that agents could not rely on prior actions as the basis for arresting suspected
straw purchasers or interdicting weapons.”’'*
ATF agents also informed the Committee that the Arizona U.S. Attorney's
Office required proof, by clear and convincing evidence, that every person in a chain
of people who possessed the firearm had the intent to commit a crime.'™ Agents
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56
understood this to mean that they would not have sufficient probable cause to arrest
a suspect or interdict weapons when suspects transferred guns to non-prohibited
persons who then trafficked the guns to Mexico.''^'
DEA photo from announcement of Fast and Furious indictments
(January 2011)
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57
C. No Evidence that Senior Officials
Authorized or Condoned Gunwalking in
Fast and Furious
Contrary to some claims, the Committee has obtained no evidence that
Operation Fast and Furious was conceived and directed by high-level political
appointees at the Department of Justice. Rather, the documents obtained and
interviews conducted by the Committee reflect that Fast and Furious was the latest
in a series of fatally flawed operations run by ATF's Phoenix Field Division and the
Arizona U.S. Attorney's Office during both the previous and current administrations.
The Acting Director of ATF, the Deputy Director of ATF, and the U.S. Attorney
in Arizona each told the Committee that they did not approve of gunwalking in
Operation Fast and Furious, were not aware that agents in ATF-Phoenix were using
the tactic, and never raised any concerns with senior officials at the Department of
Justice in Washington, D.C. In addition, the Deputy Attorney General and Assistant
Attorney General for the Criminal Division both stated that ATF and prosecutors
never raised concerns about gunwalking in Operation Fast and Furious to their
attention, and that, if they had been told about gunwalking, they would have shut
it down. The Attorney General has stated consistently that he was not aware of
allegations of gunwalking until 2011, and the Committee has received no evidence
that contradicts this assertion.
i
Attorney General Holder “
The Attorney General has stated repeatedly
that he was unaware that gunwalking occurred in
Operation Fast and Furious until the allegations
became public in early 201 1.‘^^ In testimony before
the Senate Judiciary Committee, Attorney General
Holder was unequivocal in his criticism of the
controversial tactics employed in Fast and Furious:
Now I want to be very clear, any instance
of so called gunwalking is simply unacceptable.
Regrettably this tactic was used as part of Fast and Furious which was
launched to combat gun trafficking and violence on our Southwest
border.
This operation was flawed in its concept and flawed in its execution,
and unfortunately we will feel the effects for years to come as guns that
were lost during this operation continue to show up at crime scenes
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58
both here and in Mexico. This should never have happened and it
must never happen again.’’^
Testifying before the House Judiciary Committee, the Attorney General
rejected the allegation that senior leaders at the Department of Justice approved of
gunwalking in Operation Fast and Furious:
I mean, the notion that people in the— in Washington, the leadership of
the Department approved the use of those tactics in Fast and Furious is
simply incorrect. This was not a top-to-bottom operation. This was
a regional operation that was controlled by ATF and by the U.S.
Attorney's Office in Phoenix.'”
The Committee has obtained no evidence indicating that the Attorney General
authorized gunwalking or that he was aware of such allegations before they became
public. None of the 22 witnesses interviewed by the Committee claims to have
spoken with the Attorney General about the specific tactics employed in Operation
Fast and Furious prior to the public controversy.
To the contrary, the evidence received by the Committee supports the
Attorney General's assertion that the gunwalking tactics in Operation Fast and
Furious were developed in the field. The leaders of the two components with
management responsibility for Operation Fast and Furious— ATF and the U.S.
Attorney's Office— informed the Committee that they themselves were not aware of
the controversial tactics used in Operation Fast and Furious and did not brief anyone
at Justice Department headquarters about them. Similarly, the Attorney General's
key subordinates— the Deputy Attorney General and the Assistant Attorney General
for the Criminal Division— informed the Committee that they were never briefed on
the tactics by ATF or the U.S. Attorney's Office and never raised concerns about the
operation to the Attorney General.
In 2010, the Office of the Attorney General received six reports from the
National Drug Intelligence Center that contained a brief, one paragraph overview of
Operation Fast and Furious, None of the information in the documents discussed
the controversial tactics used by ATF agents in the case. One typical paragraph read:
From August 2 through August 6, the National Drug Intelligence
Center Document and Media Exploitation Team at the Phoenix
Organized Crime Drug Enforcement Task Force (OCDETF) Strike
Force will support the Bureau of Alcohol, Tobacco, Firearms, and
Explosives' Phoenix Field Division with its investigation of Manuel
Celis-Acosta as part of OCDETF Operation Fast and the Furious. This
investigation, initiated in September 2009 in conjunction with the Drug
Enforcement Administration, Immigration and Customs Enforcement,
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59
and the Phoenix Police Department, involves a Phoenix-based firearms
trafficking ring headed by Manuel Celis-Acosta. Celis-Acosta and
[redacted] straw purchasers are responsible for the purchase of 1,500
firearms that were then supplied to Mexican drug trafficking cartels.
They also have direct ties to the Sinaloa Cartel which is suspected
of providing $1 million for the purchase of firearms in the greater
Phoenix area.'”
In his October 7, 2011, letter, the Attorney General explained that he never
reviewed the reports and that his staff typically reviews these reports. He also
testified that even if he had reviewed them personally, they did not indicate
anything problematic about the case because "the entries suggest active law
enforcement action being taken to combat a firearms trafficking organization that
was moving weapons to Mexico,"'”
Documents provided to the Committee indicate that in December 2010, the
Arizona U.S. Attorney's Office was preparing to inform the Attorney General's Office
about the general status of upcoming indictments in Operation Wide Receiver when
news of Agent Terry's death broke.
On December 14, 2010, Monty Wilkinson, the Attorney General's Deputy
Chief of Staff, sent an email to U.S. Attorney Burke asking if he was available for
a call that day.'” The next day, U.S. Attorney Burke replied, apologized for not
responding sooner, and said he would call later in the day.'” He also stated that the
U.S. Attorney's Office had a large firearms trafficking case he wanted to discuss that
was set to be indicted in the coming weeks.'”
Several hours later on December 15, 2010, U.S. Attorney Burke learned that
Agent Terry had been murdered.'*" He alerted Mr. Wilkinson, who replied, "Tragic,
I've alerted the AG, the Acting DAG, Lisa, etc."'*'
Later that same day, U.S. Attorney Burke learned that two firearms found
at Agent Terry's murder scene had been purchased by a suspect in Operation Fast
and Furious. He sent an email to Mr. Wilkinson forwarding this information and
wrote: "The guns found in the de.sert near the murder [sic] BP officer connect back
to the investigation we were going to talk about— they were AK-47's purchased at a
Phoenix gun store.""*" Mr, Wilkinson replied, "I'll call tomorrow.""*-’
In his interview with Committee staff, U.S. Attorney Burke stated that he did
not recall having any subsequent conversation with Mr. Wilkinson that "included
the fact that Fast and Furious guns were found at the scene" of Agent Terry's
murder."*’ In a November 2011 hearing of the Senate Judiciary Committee, Senator
Charles Grassley asked Attorney General Holder, "Did Mr. Wilkinson say anything
to you about the connection between Agent Terry's death and the ATF operation?"
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60
Attorney General Holder responded, "No, he did not."”*= In a January 27, 2011,
letter to the Committee, the Department stated that Mr. Wilkinson "does not recall a
follow-up call with Burke or discussing this aspect of the matter with the Attorney
General.'''“ - -
Deputy Attorney General Grindler
^ I would hove
stopped it."
-former Deputy Attorney
General Grindler
During his interview with Committee
staff, Gary Grindler, the former Acting Deputy
Attorney General stated that he was not aware of
the controversial tactics that ATF-Phoenix employed in
Operation Fast and Furious, never authorized them, and never briefed anyone at the
Department of Justice about them."’’'
In March 2010, Acting ATF Director Melson and Deputy Director Hoover met
with Mr. Grindler for a monthly check-in meeting and shared information about
Operation Fast and Furious and other matters. As part of this briefing, Mr. Melson
and Mr. Hoover stated that they discussed the total number of firearms purchased
by individual suspects in Operation Fast and Furious, the total amount of money
spent on purchasing these firearms, and a map displaying seizure events for the case
in both the United States and Mexico.'**
Mr. Grindler stated that neither of ATF's senior leaders raised any concerns
with him about Operation Fast and Furious at that briefing or mentioned
gunwalking:
Q: And to your recollection, did Director Melson or Deputy
Director Hoover ever tell you that they were deliberately
allowing firearms to be transferred to Mexico in order to use
them as a predicate for cases in the United States?
A: I mean, I am extraordinarily confident that they didn't tell
me that. That is just an absurd concept. If that had been told
to me, I would not only have written something, but done
something about it.
Q: What would you have done?
A: I would have stopped it. 1 would have asked for detailed
briefings about this matter and figure out more clearly
what's going on here.'*’’
Deputy Director Hoover corroborated Mr. Grindler's account. In his
interview with the Committee, Mr, Hoover explained that he did not inform the
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61
Deputy Attorney General about gunwalking in Operation Fast and Furious because
he did not know about it himself:
A: Well, there's been reports that the Deputy Attorney General's
office was aware of the techniques being employed in Fast
and Furious, and that's not the case, because 1 certainly
didn't brief them on the techniques being employed in Fast
and Furious.
Q: Because you didn't know?
A: Right.""
When asked whether he ever discussed his briefing on Operation Fast and
Furious with the Attorney General, Mr. Grindler said, "1 don't have any recollection
of advising the Attorney General about this briefing in 2010.""'
Acting ATF Director Melson
In an interview with Committee staff on July 4, 2011, then-Acting ATF
Director Kenneth Melson stated that he was not aware of the controversial tactics
that the ATF-Phoenix Field Division employed, never authorized them, and never
briefed anyone at the Department of Justice about them. Mr. Melson stated;
I don't believe that I knew or that [Deputy Director] Billy Hoover
knew that they were— that the strategy in the case was to watch
people buy the guns and not interdict them at some point. That issue
had never been raised. It had never been raised to our level by the
whistleblowers in Phoenix — that stayed in-house down there. The
issue was never raised to us by ASAC [Assistant Special Agent in
Charge] Gillett who was supervising the case.
It unfortunately was never raised to my level by SAC [Special Agent in
Charge] Newell who should have known about the case, if he didn't,
and recognize the issue that was percolating in his division about the
disagreement as to how this was occurring. Nor was it raised to my
level by DAD [Deputy Assistant Director] McMahon who received the
briefing papers from [Phoenix Group Supervisor] Voth and may have
had other information on the case. Nor was it given to me by a Deputy
Assistant Director in OSll, the intel function, when he briefed this case
the one time I wasn't there and he raised an objection to it and saw
nothing change.’'”
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62
Director Melson also denied that Department of Justice or senior ATF officials
devised or authorized those tactics:
Q: Did you ever use or authorize agents to use a tactic of non-
intervention to see where the guns might go?
A: I don't believe ! did.
Q: Did you ever tell agents not to use or authorize agents not
to use other common investigative techniques like "knock
and talks" or police pullovers in order to see where the guns
might go in this case?
A: No,
Q: Did anyone at the Department of Justice ever tell you or
tel! anyone else at headquarters and it got to you that those
tactics were authorized as part of a new strategy in order to
follow the guns, let the guns go, see where they might end
up?
A: No.''’’
Documents obtained by the Committee indicate that Mr. Melson received
three briefings regarding Fast and Furious in the early months of the operation
and had regular status updates thereafter. He stated that "the general assumption
among the people that were briefed on this case was that this was like any other
case that ATF has done.""*'' In addition to stating that he was not aware of the
controversial tactics in Operation Fast and Furious, Mr. Melson stated that he did
not know the full scope or scale of criminal activity by suspects until after concerns
about gunwalking became public.
After the public controversy broke, Mr. Melson requested copies of Operation
Fast and Furious case files to review for himself. He told Committee staff that he
became extremely concerned after reviewing them;
I think I became fully aware of what was going on in Fast and Furious
when I was reading the ROIs. And I remember sitting at my kitchen
table reading the ROIs, one after another after another, I had pulled out
all Patino's — and ROIs is. I'm sorry, report of investigation — and you
know, my stomach being in knots reading the number of times he went
in and the amount of guns that he bought.
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63
And this is why I wish the people in Phoenix had alerted us during
this transaction to exactly this issue, so we could have had at least
made a judgment as to whether or not this could continue or not.'®
ATF Deputy Director Hoover
During his interview with Committee staff, then-Deputy Director William
Hoover stated that he had not been aware of the tactical details in Operation Fast
and Furious and had not raised any concerns with Acting ATF Director Melson or
anyone at Justice Department headquarters.”" Deputy Director Hoover rejected
the suggestion that senior management officials at ATF or the Department of Justice
were responsible for any of the controversial tactical decisions made in Operation
Fast and Furious;
Q: But you don't believe that this is some sort of top-down — it
wasn't a policy or some tactical strategy from either ATF
management or main Justice to engage in what happened
here in Phoenix in Fast and Furious?
A: No, sir. It's my firm belief that the strategic and tactical
decisions made in this investigation were born and raised
with the U.S. Attorney's Office and with ATF and the
OCDETF strike force in Phoenix.’®
Mr. Hoover's subordinates also informed the Committee that they did not
warn him about gunwalking allegations in Operation Fast and Furious because they
were unaware of them. Assistant Director for Field Operations Mark Chait told the
Committee that he was "surprised" when he learned of allegations that gunwalking
occurred in Operation Fast and Furious in February 2011.”* Deputy Assistant
Director for Field Operations William McMahon, the supervisor above the Phoenix
Field Division, stated:
I don't think at any point did we allow guns to just go into somebody's
hands and walk across the border. 1 think decisions were made to
allow people to continue buying weapons that we suspected were
going to Mexico to put our case together. But I don't believe that at any
point we watched guns going into Mexico. I think we did everything
we could to try to stop them from going to Mexico.'”
Although Mr. Hoover stated that he was unaware of gunwlking allegations in
Operation Fast and Furious prior to the public controversy, he informed Committee
staff that he became concerned in March 2010 about the number of guns being
purchased.^™ As discussed above, Mr. Hoover received a briefing in March 2010
during which ATF officials described the suspects, the number of firearms, the
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64
amount of money each had spent, known stash houses, and the locations where
firearms had been recovered. Mr. Hoover told the Committee that he ordered an
"exit strategy" to close the case antf seek indictments within 90 days.
Apart from whether Mr. Hoover was aware of specific gunwalking allegations
in Operation Fast and Furious, it remains unclear why he failed to inform Acting
ATF Director Melson or senior Justice Department officials about his more general
concerns with the investigation or his directive for an exit strategy.
During his interview with Committee staff. Deputy Director Hoover took
substantial personal responsibility for ATF's actions in Operation Fast and Furious.
He stated:
I blame no one else. I blame no one else - not DEA, not the FBI, not the
U.S. Attorney's Office. If we had challenges, then we need to correct
those challenges. I am the deputy director at ATF, and, ultimately, you
know, everything flows up, and I have to take responsibility for the
mistakes that we made.’"'
United States Attorney Burke
During an interview with Committee staff, Arizona U.S. Attorney Dennis
Burke stated that neither he nor anyone above him ever authorized non-interdiction
of weapons or letting guns walk in Operation Fast and Furious:
Q: To your knowledge as the U.S. Attorney for the District of
Arizona, did the highest levels of the Department of Justice
authorize [the] non-interdiction of weapons, cutting off of
surveillance, as an investigative tactic in Operation Fast and
Furious?
A: I have no knowledge of that.
Q: Do you believe you would have known if that was the case?
A: Yes.
Q: Did you ever authorize those tactics?
A: No.
Q: Did anyone ever discuss— from the Department of Justice
main headquarters— your supervisors— ever discuss with
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65
you or raise to your attention that there was a new policy
with respect to interdiction of weapons or surveillance of
firearms?
A; No. Not that I can recall at all.
Q: And did anyone ever— from the Department of Justice, Main
Justice I will call it, ever tell you that you were authorized
to allow weapons to cross the border when you otherwise
would have had a legal authority to seize or interdict them
because they were a suspected straw purchase or it was
suspected that they were being trafficked in a firearms
scheme?
A: I have no recollection of ever being told that.”^
Although U.S. Attorney Burke agreed with ATF-Phoenix's proposal to build a
"bigger" case that targeted the organizers of the firearms trafficking conspiracy, he
stated that ATF-Phoenix never indicated that agents would be letting guns walk as
part of the investigation:
Q: Did you ever discuss with him [Special Agent in Charge
Newell] a deliberate tactic of non-interdiction to see where
the weapons ended up? To see if they ended up with the
DTO in Mexico?
A: I do not recall that at all.
Q: Would that stick out in your mind at this point if he had said
we're going to let the guns go, find them in crime scenes in
Mexico, and then use that to make a connection to a DTO?
A: I don't recall that at all. 1 was under the opposite impression,
which was that based on his contacts and the relationships
with Mexico and what they were doing, that they would be
working with Mexico on weapons transferred into Mexico.^*®
Emails from Special Agent in Charge Newell touting recent seizures of
firearms in both the United States and in Mexico are consistent with U.S. Attorney
Burke's statement that he believed ATF-Phoenix was coordinating interdiction with
appropriate law enforcement agencies on both sides of the border. For example, on
June 24, 2010, Mr. Newell sent an email to Mr. Burke with a picture of a .50 caliber
weapon that had been recovered, stating: "Never ends ... our folks are working non-
stop around the dock 7 days a week. But they are making some great seizures and
gleaning some great Intel."®”
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66
The lead prosecutor on the case, Emory Hurley, sent Mr. Burke similar
updates. On August 16, 2010, for example, Mr. Hurley prepared a memorandum
asserting that "the investigation has interdicted approximately 200 firearms,
including two .50 caliber rifles" and stating, "[a]gents have not purposely let guns
'walk."'‘®
Criminal Division review of Fast and Furious wiretap applications
In testimony before a Subcommittee of the Senate Judiciary Committee on
November 1, 2011, Assistant Attorney General Lanny Breuer stated that he first
became aware of the controversial tactics in Operation Fast and Furious after they
became public:
T found out first when the public disclosure was made by the ATF
agents early this year. When they started making those public
statements, of course, at that point, as you know, both the leadership of
ATF and the leadership of the U.S. Attorney's Offices adamantly said
that those allegations were wrong.
But as those allegations became clear, that is when I first learned that
guns that could — that ATF had both the ability to interdict and the
legal authority to interdict, that they failed to do so. That is when I
first learned that. Senator.^*
Similarly, in an interview with Committee staff. Deputy Assistant Attorney
General Jason Weinstein stated:
I did not know at any time during the investigation
of Fast and Furious that guns had walked during
that investigation. 1 first heard of possible
gunwalking in Fast and Furious when the
whistleblower allegations were made public in
early 2011. Had I known about gunwalking in Fast
and Furious before the allegations became public, I
would have sounded the alarm about iD“^
Mr. Breuer and Mr. Weinstein also rejected the allegation that they should
have been able to identify gunwalking in Operation Fast and Furious based on the
Criminal Division's legal reviews of wiretap applications submitted by the Arizona
U.S. Attorney's Office.
Federal law requires that senior Department officials approve all Federal
law enforcement applications to Federal judges for the authority to conduct
wiretaps.”* The Department has assigned that legal review duty to the Office of
44
I w mild Inn l
sounded the
iilci'm
-A'mitunt Attorney
General Brfiier
- 58 -
67
Enforcement Operations in the Criminal Division.™ During Operation Fast and
Furious, numerous wiretap applications were submitted to the Criminal Division to
determine whether they satisfied the legal threshold established under the Fourth
Amendment to the United States Constitution. Drafts of the applications were
sent to the Office of Enforcement Operations, which prepared cover memos for
final review and approval by a Deputy Assistant Attorney General.^’” The wiretap
applications are under court seal and therefore have not been produced to the
Committee.
Mr. Weinstein informed the Committee that he reviewed the cover
memoranda prepared by the Office of Enforcement Operations for three wiretap
applications in Operation Fast and Furious and that he approved all three.’" He
stated that his general practice was to read the cov^'er memo first and examine the
underlying affidavit only if there were issues or questions necessary to the probable
cause determination that the summary memo did not provide.’” Mr. Weinstein
stated that he believed his practice was consistent with the conduct across various
administrations.’”
Mr. Weinstein rejected the criticism that he should have identified
gun walking in Operation Fast and Furious based on his review of the memoranda
summarizing the wiretap affidavits in the case. Although he could not comment
on the contents of the documents because they are under seal by a Federal District
Court judge, he stated;
It's not a fair criticism. As I said earlier, I ^
can't comment on the contents. What I can
say is I obviously have a sensitive radar to
gunwalking, since that's been the focus of my
life, my professional life, is keeping guns out
of the hands of criminals. So when 1 saw in
Wide Receiver that an investigation, however
well intentioned it may have been, was being
conducted in a way that put guns in the
hands of criminals, I reacted pretty strongly
to it. Had I seen anything at any time during
the investigation of Fast and Furious that
raised the same concerns, I would have reacted.
And 1 would have reacted even more strongly because that would
have meant it was still going on and that Wide Receiver was not in fact
an isolated incidence as 1 believed it to be.’"
In testimony before the Senate Judiciary Committee, Mr. Breuer made clear
that his staff reviews wiretap affidavits to determine the legal sufficiency of the
The focus of my
life, my profes-
'^innul life. IS ktep-
ing guns out of
Ihi hands af
I nmmals. '
-Oi’niityAiS/'-iriiitArtoimy
'ii'iii'ial Ueifisfe/ti
- 59 -
68
request rather than to conduct oversight of investigative tactics in law enforcement
investigations. He stated:
[A]s Congress made dear, the role of the reviewers and the role of the
deputy in reviewing Title 111 applications is only one. It is to ensure
that there is legal sufficiency to make an application to go up on a wire
and legal sufficiency to petition a Federal judge somewhere in the
United States that we believe it is a credible request. But we cannot—
those now 22 lawyers that 1 have who review this in Washington, and
it used to only be 7, cannot and should not replace their judgment, nor
can they, with the thousands of prosecutors and agents all over the
country.
Theirs is a legal analysis: Is there a sufficient basis to make this
request? We must and have to rely on the prosecutors and their
supervisors and the agents and their supervisors all over the country
to determine that the tactics that are used are appropriate.^'^
Criminal Division response to Wide Receiver
Questions have been raised about whether Mr. Breuer or Mr. Weinstein
should have been aware of gunwalking in Operation Fast and Furious because
they learned about similar tactics in a different case dating back to 2006 and 2007,
Operation Wide Receiver, Documents obtained by the Committee indicate that as
soon as they learned about gunwalking during the previous Administration, Mr.
Breuer and Mr. Weinstein took immediate steps to register their concerns directly
with the highest levels of ATF leadership, but they did not inform the Attorney
General or the Deputy Attorney General.
In March 2010, a Criminal Division supervisor sent an email to Mr, Weinstein
regarding the Wide Receiver case stating that, “with the help of a cooperating
FFL, the operation has monitored the sale of over 450 weapons since 2006."^"'’ In
response, Mr, Weinstein expressed concern, writing: "Tm looking forward to
reading the prosjccution] memo on Wide Receiver but am curious — did ATF allow
the guns to walk, or did ATF learn about the volume of guns after the FFL began
cooperating?"^'^ The supervisor inaccurately responded: "My recollection is
they learned afterward."^"* As discussed above, ATF Operational Plans and other
documents provided to the Committee show that ATF agents in Arizona were
contemporaneously aware of the illegal straw purchases.
The next month, Mr. Weinstein received and reviewed a copy of the
prosecution memorandum prepared by the criminal prosecutor in the Wide Receiver
case.^'° On April 12, 2010, Mr. Weinstein wrote to the prosecutors stating:
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ATF HQ should/will be embarrassed that they let this many guns
walk — I'm stunned, based on what we've had to do to make sure not
even a single operable weapon walked in UC [undercover] operations
I've been involved in planning— and there will be press about thatF“
In his interview with Committee staff, Mr. Weinstein explained that "there
was no question from the moment those sales were completed that ATF had a lot
of evidence that those sales were illegal. That's pretty rare. And it's that specific
fact that set me off on Wide Receiver."^^’ He also stated that the gunwalking tactics
used in Wide Receiver "were unlike anything I had encountered in my career as a
prosecutor."^^^ As a former prosecutor in the U.S. Attorney's Office in Baltimore, he
added:
One of my priorities in all of the work I did in Maryland was to
stop guns from getting to criminals and get guns out of the hands of
criminals who managed to get their hands on them. But I was very
sensitive about any situation or any operation that might result in law-
enforcement, however inadvertently, putting a gun into the hands of a
criminal. And so all of the operations that 1 participated in designing,
and I referred to this in the email, were designed to make sure that not
even a single operable weapon got in the hands of a criminal.^-’
After reading the prosecution memorandum, Mr. Weinstein contacted
his supervisor. Assistant Attorney General Breuer. On April 19, 2010, they met
to discuss Mr. Weinstein's concerns about ATF-Phoenix's handling of the case.^^'*
According to Mr. Weinstein, Mr. Breuer shared his shock about the gunwalking
tactics used in Wide Receiver:
[Tjhere's no question in my mind from his reaction at the meeting
that Mr. Breuer shared the same concerns that 1 did. As I indicated in
my opening, Mr, Breuer has made helping Mexico and stopping guns
from getting to Mexico a top priority. I had commented to somebody
in my office that I traded when I came from Baltimore to the Criminal
Division, I traded having a boss come into my office every day and
ask me what am I doing to keep the murder rate down, to a boss
who is asking me virtually every day, what am I doing to stop guns
from going to Mexico? So when he heard about this he had the same
reaction 1 did.^^-’
According to Mr. Weinstein, Mr. Breuer directed him to immediately register
their concerns "directly with the leadership of ATF."™ The next day, Mr. Weinstein
contacted ATF Deputy Director Hoover to request a meeting.”' On April 28, 2010,
Mr. Weinstein and Mr. Hoover met and were joined by the Acting Chief of the
Organized Crime and Gang Section at DOJ, James Trusty and ATF Deputy Assistant
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Director William McMahon.^’" Mr. Weinstein told the Committee that he expressed
his serious concerns about ATF-Phoenix's management of Wide Receiver and the
fact that so many firearms had been allowed to walk. Notes taken at that meeting
indicate that of 183 guns sold in the first part of Operation Wide Receiver, the "vast
majority walkjed]" and were linked to "violent crime. Mr. Weinstein stated:
[A]t the meeting the first topic on the agenda was to talk about the
tactics. And so Mr. Trusty and 1 went through the facts of the case and
1 explained my concerns about the tactics. The meeting was nearly
2 years ago now, and as I sit here today I just can't recall the specific
words used, but my strong memory from that meeting is that Mr.
Hoover had the same reaction I did; that is, that he shared my concerns
about the tactics. And I walked away from that meeting being satisfied
that although this had happened in '06 and '07, this was not the kind
of thing that would be happening under Mr. Hoover's watch. 1 wish
I could remember the exact words used, but that's the strong sense I
walked away w'ith.'-’"
Although neither Mr. Breuer nor Mr. Weinstein had direct supervisory
authority over ATF, Mr. Weinstein told the Committee that the seriousness of issue
compelled them to request the meeting. Mr. Weinstein stated:
I raised this with Mr. Hoover because 1 knew it was something he
would be concerned about and he was concerned about it. I didn't
direct him. It's not my place to direct him. 1 didn't ask him to do
anything in particular. His reaction, as I said, was exactly what I
expected, which was concern about the tactics. And so 1 just walked
away. I walked away feeling there was no reason to worry that this
was the kind of thing that he would tolerate.^'
Mr. Weinstein stated that he relayed the details of the meeting to Mr. Breuer,
and at that time both of them believed that they had satisfied their duty to address
the issue with the appropriate managers.’^’ Mr. Weinstein also noted that he
believed the gunwalking in Wide Receiver was an "extreme aberration from years
ago."“
Despite rai.sing these concerns about gunwalking in Operation Wide Receiver
immediately with senior ATF leadership, Mr. Breuer later expressed regret for
not raising these concerns directly with the Attorney General or Deputy Attorney
General. During an exchange at a hearing with Senator Grassley, Mr. Breuer stated:
1 regret the fact that in April of 2010, 1 did not. At the time, I thought
that we— dealing with the leadership of ATF was sufficient and
reasonable. And frankly, given the amount of work I do, at the time.
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71
I thought that that was the appropriate way of dealing with it. But I
cannot be more clear that knowing now — if I had known then what I
know now, I, of course, would have told the Deputy and the Attorney
General.^^'*
Criminal Division interactions with Mexican Officials
According to documents obtained by the Committee, Assistant Attorney
General Breuer met with senior officials from the Mexican government in Mexico
on February 2, 2011, to discuss potential areas of cooperation to fight transnational
organized crime and drug trafficking.^^ According to a summary, the group
discussed a wide range of issues including U.S. extradition requests to Mexico,
firearms trafficking, and a cooperative security agreement between the United
States, Mexico, and countries in Centra! America.^
With respect to combating firearms trafficking, the Mexican Undersecretary
for North America explained that "greater coordination and flow of information
would be helpful to combat arms trafficking into Mexico."-’’’ Mr. Breuer responded
by telling the Mexican officials that the Department had sought to increase penalties
for straw purchasers and desired their support for such measures. According to the
summary, Mr. Breuer also made a suggestion about one way the two countries could
increase coordination:
AAG Breuer suggested allowing straw purchasers cross into Mexico
so SSP [Mexican federal police force] can arrest and PGR [the
Mexican Attorney General's Office] can prosecute and convict. Such
coordinated operations between the US and Mexico may send a strong
message to arms traffickers.”*
Documents produced to the Committee indicate that this summary of Mr,
Breuer's meeting was shared with Acting ATF Director Melson in anticipation of
his February 8, 2011, meeting with the U.S. Ambassador to Mexico.”’ According
to a summary of this latter meeting, Mr. Melson discussed with the Ambassador
the possibility of controlled firearms deliveries, but the Department of Justice
Attache who was also present raised concern about the "inherent risk" of such joint
operations;
Melson and the Ambassador discussed the possibility of allowing
weapons to pass from the US to Mexico and US law enforcement
coordinating with SSP and PGR to arrest and prosecute the arms
trafficker. I raised the issue that there is an inherent risk in allowing
weapons to pass from the US to Mexico; the possibility of the GoM
[Government of Mexico] not seizing the weapons; and the weapons
being used to commit a crime in Mexico.™
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72
The documents obtained by the Committee do not indicate that any action
was taken after this meeting regarding efforts to coordinate operations with Mexican
authorities.
As describeti in the section above on the Hernandez case, the memo prepared
for Attorney General Mukasey in 2007 similarly explained that "ATF would like to
expand the possibility of such joint investigations and controlled deliveries— since
only then will it be possible to investigate an entire smuggling network, rather than
arresting simply a single smuggler.^'*' The memo provided to Attorney General
Mukasey was explicit, however, in warning that previous operations "have not been
successful,"^'-
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D. Department Responses to Gunwalking
IN Operation Fast and Furious
Inaccurate information initially provided to Congress
On January 27, 2011, Senator Charles Grassley wrote a letter to the
Department of Justice relaying allegations from whistleblowers that ATF-Phoenix
had walked guns in Operation Fast and Furious.™ On February 4, 2011, Ron Weich,
the Assistant Attorney General for Legislative Affairs, sent a written response that
stated;
[T]he allegation described in your January 27 letter — that ATF
"sanctioned or otherwise knowingly allowed the sale of assault
weapons to a straw purchaser who then transported them into
Mexico" — is false. ATF makes every effort to interdict weapons that
have been purchased illegally and prevent their transportation to
Mexico.™
As this report documents, it became apparent during the course of the
Committee's investigation that this statement in the Department's letter was
inaccurate and, on December 2, 2011, the Deputy Attorney General formally
withdrew the Department's February 4th letter.™ On the same day, the Department
provided the Committee with more than 1,000 pages of internal emails, notes, and
drafts from all of the parties involved in the drafting of the February 4 letter, as well
as a lengthy explanation of how the inaccurate information was included in the
letter. According to the Department:
Department personnel, primarily in the Office of Legislative Affairs,
the Criminal Division and the Office of the Deputy Attorney General,
relied on information provided by supervisors from the components
In the best position to know the relevant facts: ATF and the U.S.
Attorney's Office in Arizona, both of which had responsibility
for Operation Fast and Furious. Information provided by those
supervisors was inaccurate.™
The documents obtained by the Committee and the interviews conducted by
Committee staff support this explanation.
Documents obtained by the Committee indicate that, during the drafting
of the letter, senior ATF officials insisted that ATF-Phoenix had not allowed guns
to walk in Operation Fast and Furious. Detailed notes of a meeting with Acting
Director Melson taken by a Department of Justice official state that ATF "didn't let
a guns [sic] walk," and "didn't know they were straw purchasers at the time."™
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74
Additional notes taken of a meeting with Deputy Director Hoover state that
"ATF doesn't let guns walk," and "we always try to interdict weapons purchased
illegally."^''®
Both Acting ATF Director Melson and ATF Deputy Director Hoover told the
Committee that they did not intend to mislead the Department or Congress and that
they sincerely believed that guns had not walked in Operation Fast and Furious at
the time the letter was drafted.™
The U.S. Attorney's Office in Arizona also adamantly denied allegations of
gunwalking. On January 31, 2011, U.S. Attorney Burke wrote to senior Department
officials that the allegations "are based on categorical falsehoods."^" Mr. Burke and
the Chief of the Criminal Division at the U.S. Attorney's Office sent a series of emails
over the course of that week continuing to deny the allegations and pressing for a
strong response.""’
In his interview with Committee staff, U.S. Attorney Burke stated that, after
later learning about the scope of gunwalking in Operation Fast and Furious, he
deeply regretted conveying "inaccurate" information to senior Department officials
drafting the February 4 response, but that it "was not intentional.""""
The Committee was not able to interview one witness from the U.S. Attorney's
Office, the former Criminal Chief, Patrick Cunningham. In a letter on January 19,
2011, Mr. Cunningham's attorney informed the Committee that he was exercising his
Fifth Amendment right against self-incrimination. The letter stated:
1 am writing to advise you that my client is going to assert his
constitutional privilege not to be compelled to be a witness against
himself. The Supreme Court has held that "one of the basic functions
of the privilege is to protect innocent men." Cruncwald v. United States,
353 U.S. 391,421 (1957); see also Ohio v. Reiner, 532 U.S. 17 (2001) (per
curiam). The evidence described above shows that my client is, in fact,
innocent, but he has been ensnared by the unfortunate circumstances
in which he now stands between two branches of government. I will
therefore be instructing him to assert his constitutional privilege.""-’
During his interview with Committee staff, U.S. Attorney Burke stated that
Mr. Cunningham adamantly denied that gunwalking occurred in Operation Fast
and Furious."” Similarly, Deputy Assistant Attorney General Weinstein informed
Committee staff that Mr. Cunningham continued to assert that gunwalking had not
occurred in Operation Fast and Furious after the February 4, 2011, letter.""-’
Within the Criminal Division, Mr. Weinstein informed the Committee that he
offered to assist in the drafting of the February 4 letter "to be helpful," but that he
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75
had no independent knowledge of Operation Fast and Furious and relied on ATF
and the U.S. Attorney's Office for information. He stated:
As the Department prepared its response, I and others in Main Justice
were repeatedly and emphatically assured by supervisors in the
relevant components who were in position to know the case best— that
is the Arizona U.S. Attorney's Office and ATF leadership — that no guns
had been allowed to walk in connection with Fast and Furious; and it
was on that basis that the Department provided inaccurate information
to Congress in the February 4th letter.
Now much attention has been paid to the sentence in that letter that
reads, "ATF makes every effort to interdict weapons that have been
purchased illegally and prevent their transportation to Mexico," As
the documents you've received made clear, 1 and others at Vtain Justice
received multiple assurances from the U.S. Attorney's Office and from
ATF that this statement, like the other information in the letter, was
true. ...
Given what I know now, of course, 1 wish 1 had not placed such faith in
the assurances provided to me by the leadership of the U.S. Attorney's
Office and ATF. But given what 1 knew then and given the strength of
those assurances 1 believed at the time that it was entirely appropriate
to do so. 1 trusted what was said to me and 1 firmly believed at that
time that in fact ATF had not let guns walk in Fast and Furious.
Obviously, time has revealed the statements made to me and others to
be inaccurate, and that is beyond disappointing to me.“*
Mr. Weinstein also explained why he did not raise concerns about
gunwalking during the previous administration in Operation Wide Receiver in 2006
and 2007. During his interview with Committee staff, he stated;
Now some have said that because 1 knew about Wide Receiver at the
time I assisted with the February 4th letter, 1 knew that statement to be
untrue, and that is just not correct. Let me explain why.
Wide Receiver was an old case in which inappropriate tactics had
been used in the investigative phase years earlier. This occurred
under a prior administration, under a different U.S. Attorney's Office
management and different ATF management. Because of the repeated
assurances 1 and others received in February 2011, from the then
current leadership of the U.S. Attorney's Office in ATF that guns had
not walked in Fast and Furious and from ATF that it was making
every effort to interdict guns, I did not make any connection between
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76
Wide Receiver and Fast and Furious. For that reason, I simply was not
thinking about Wide Receiver as I assisted with the February 4th letter
which I understood to be about Fast and Furious.^’
Mr. Weinstein also rebutted the allegation of an intentional cover-up:
Q: Mr. Weinstein, during the drafting of the February 4th letter,
did you intentionally try to mislead Congress?
A: Absolutely not.
Q: To your knowledge, did Mr. Breuer ever try to intentionally
mislead Congress?
A: Absolutely not.
Q: To your knowledge, did anyone else at Main Justice, during
the drafting of the February 4th letter, intentionally try to
mislead Congress?
A: Absolutely not.’’®
Request for IG investigation and reiteration of Department policy
Soon after the Attorney General became aware of allegations relating
to gunwalking in Operation Fast and Furious, he took several steps to address
them. First, the Attorney General requested that the Inspector General investigate
Operation Fast and Furious and the Department's response to Senator Grassley's
letter.^® Testifying before a Senate Appropriations Subcommittee, the Attorney
General stated:
It is true that there have been concerns expressed by ATF agents
about the way in which this operation was conducted, and on that I
took those allegations, those concerns, very seriously and asked the
Inspector General to try to get to the bottom of it. An investigation, an
inquiry is now under way.
I've also made clear to people in the Department that letting guns
walk— I guess that's the term that the people use— that letting guns
walk is not something that is acceptable. Guns are— are different than
drug cases or cases where we're trying to follow where money goes.
We cannot have a situation where guns are allowed to walk, and I've
made that clear to the United States Attorneys as well as the Agents in
Charge in the various ATF offices.^**
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77
On March 9, 2011, Deputy Attorney General James Cole hosted a conference
call with Southwest Border United States Attorneys in which he reiterated the
Department's policy against gunwalking. After the call, Mr. Cole followed up with
an email summarizing the conversation:
As I said on the call, to avoid any potential confusion, I want to
reiterate the Department's policy: We should not design or conduct
undercover operations which include guns crossing the border. If
we have knowledge that guns are about to cross the border, we must
take immediate action to stop the firearms from crossing the border,
even if that prematurely terminates or otherwise jeopardizes an
investigation.™
Personnel actions
Justice Department officials have explained that, although they are awaiting
the findings from the Inspector General's investigation before making any final
personnel determinations, they have removed the key players in Operation Fast and
Furious from any further operational duties.
At the U.S. Attorney's Office for the District of Arizona, all of the key
personnel have resigned, been removed, or been relieved of their relevant duties
in the aftermath of Operation Fast and Furious. On August 30, 2011, Dennis Burke
resigned as the U.S. Attorney.™ In January 2012, the Chief of the Criminal Division,
Patrick Cunningham, resigned his position and left the U.S, Attorney's Office.“^
The Section Head responsible for supervising Operation Fast and Furious resigned
his supervisory duties in the fall of 2011, and the Assistant U.S, Attorney who was
responsible for managing Operation Fast and Furious was moved out of the criminal
division to the civil division.^’"'
On August 30, 201 1, the Justice Department removed Kenneth Melson as the
acting head of ATF and reassigned him to a position as a forensics advisor in the
Department's Office of Legal Policy.™ On October 5, 2011, ATF removed Deputy
Director William Hoover from his position and subsequently reassigned him to a
non-operational role.™ Also on October 5, 2011, ATF removed Assistant Director
for Field Operations Mark Chait from his position and .subsequently placed him in
a non-operational role as well.™ Deputy Assistant Director for Field Operations
William McMahon was also reassigned as a Deputy Assistant in the ATF Office of
Professional Responsibility and Security Operations on May 13, 2011, and was later
reassigned to a non-operational position,™
ATF supervisors from the Phoenix Field Division have also been reassigned.
Special Agent in Charge William Newell was reassigned to an administrative
position as a special assistant in the ATF Office of Management.™ Assistant Special
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78
Agent in Charge George Gillett was reassigned as a liaison to the U.S. Marshal's
Service.^^® The former Supervisor of Group VII, David Voth, was reassigned to ATF's
Tobacco Divisions^’
Agency reforms
On January 28, 2011, Deputy Attorney General James Cole sent a letter to
Congress explaining that the Department was "undertaking key enhancements to
existing Department policies and procedures to ensure that mistakes like those that
occurred in Wide Receiver and Fast and Furious are not repeated."^'- The letter
detailed numerous reforms, including;
• Implementing a new Monitored Case Program to increase coordination
between ATF headquarters and the field for sensitive investigations
and to improve oversight;
• Clarifying the prohibition on gunwalking and providing guidance on
responding to a gun dealer concerns about suspicious purchasers;
• Revising ATF's Confidential Informants Usage Policy and its
Undercover Operations Policy and establishing committees on
undercover operations and confidential informants;
• Providing training to personnel in ATF's Phoenix Field Division to
address U.S.-Mexico cross-border firearms trafficking issues, improve
techniques and strategies, and educate agents on the applicable law;
and
• Restructuring ATF's Office of the Ombudsman by appointing a senior
special agent as Chief ATF Ombudsman and adding a full-time special
agent to handle agent complaints^”
Deputy Attorney General Cole also outlined key improvements to ensure
the "accuracy and completeness" of the information the Department provides to
Congress. The Department issued a directive requiring the responding component
to ensure that it supplies Congress with the most accurate information by soliciting
information from employees with detailed personal knowledge of the relevant
subject matter. Ultimate responsibility for submitting or reviewing a draft
response to Congress is assigned to an appropriate senior manager, according to
the new directive. Finally, the directive emphasizes the importance of accuracy
and completeness of the information provided to Congress over the timeliness of
responding to requests.^”
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79
V. RECOMMENDATIONS
As its title indicates, the Committee on Oversight and Government Reform
has two primary missions. Not only is it charged with conducting oversight of
programs to root out waste, fraud, and abuse, but it is also responsible for reforming
these programs to ensure that government works more effectively and efficiently
for the American people. For these reasons, set forth below are ten constructive
recommendations intended to address operational problems identified during the
course of this investigation.
These recommendations for both Executive and Congressional action are
not intended to be comprehensive or exhaustive, and some already may be under
consideration or in various stages of implementation at the Department of Justice
and ATF.
Strictly Enforce the Prohibition on Gunwalking Across Law Enforcement
Agencies. Documents obtained by the Committee indicate that ATF lacked
sufficient clarity regarding its operational policies and training for firearms
trafficking cases. Following the public controversy over Fast and Furious,
Acting ATF Director B. Todd Jones issued a memo strongly stating the
Department's policy against gunwalking, and the Attorney General has used
his position to publicly reiterate this prohibition. These measures should
be complemented by efforts within each Federal law enforcement agency to
establish clear operational policies with respect to suspect firearms transfers
and provide appropriate training for field agents and supervisors.
Improve Managetnent and Oversight of ATF Trafficking Investigations.
Documents obtained by the Committee reveal a lack of adequate
communication between ATF field offices and heaciquarters about significant
trafficking investigations. In several cases, deficient communication was
magnified by disagreements between the field and headquarters about tactics
and strategy. ATF should improve its management of investigations by
requiring operational approval of all significant gun trafficking investigations
by senior ATF officials in order to ensure consistent application of ATF
policies and procedures.
Require "Operational Safety Strategy" in Trafficking Investigations. As
part of its broader effort to improve management and oversight of significant
trafficking investigations, ATF should require that each Operational Plan
developed in the field include an Operational Safety Strategy that analyzes
the risks to agents and the public of firearms potentially being released into
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80
the community and sets forth appropriate operational safeguards. Senior
ATF officials should approve these plans in order to ensure that each specific
operation has sufficient resources to implement the safeguards intended to
protect agent and public safety.
Enhance the Accessibility and Responsiveness of the ATF Ombudsman.
Documents obtained by the Committee indicate that Operation Fast and
Furious was one of several deeply flawed operations run by ATF's Phoenix
Field Division since 2006. Line agents reported to the Committee that they
made their concerns about these controversial tactics public only after raising
them first with their supervisors, but they stated that their concerns were not
heeded. To ensure agents' concerns are communicated to ATF leadership,
ATF should consider ways to improve its Office of the Ombudsman to make
it more accessible and responsive to ATF line agents.
Conduct a Review of the U.S. Attorney'.s Office in Arizona. Documents and
testimony received by the Committee indicate that the legal interpretations
and prosecutorial decisions regarding firearms cases made by officials in
the U.S. Attorney's Office in Arizona may differ substantially from those of
other U.S. Attorneys' offices. Because it remains unclear to what extent these
differences are the result of judicial, prosecutorial, or individual decisions,
the Department of Justice should direct the Executive Office for United States
Attorneys to conduct a thorough review of the Arizona U.S. Attorney's Office
to ensure that it is doing everything it can to keep illegal guns off the streets
and out of the hands of criminals.
Expand the Multiple Long Gun Sales Reporting Requirement. Numerous
law enforcement agents testified before the Committee that obtaining reports
on multiple purchases of long guns, including AK-47 variant assault weapons
and .50 caliber semi-automatic sniper rifles that are now the "weapons of
choice" for international drug cartels, would provide them with timely and
actionable intelligence to help combat firearms trafficking rings. In July 2011,
the Department of Justice issued a rule requiring such reports for weapon
sales in certain states. Earlier this month, a Federal District Court upheld
the rule, finding that "ATF acted rationally."-^^ ATF should now expand the
reporting requirement to apply to other states in which firearms trafficking
networks are particularly active.
Confirm or Appoint a Permanent ATF Director. Consistent and strong
leadership is vital to strengthening ATF and ensuring that policies and
procedures are applied consistently. For six years, however, ATF has been
forced to contend with temporary leadership because individual senators
have blocked the confirmation of a permanent director. The Senate should
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81
confirm a permanent director for ATF as soon as possible, and the President
should consider a recess appointment if the Senate fails to do so.
Enact a Dedicated Firearms Trafficking Statute. During the Committee's
investigation, multiple law enforcement agents warned that there is currently
no Federal statute that specifically prohibits firearms trafficking and, as a
result, prosecutors often charge traffickers with "paperwork violations"
such as dealing in firearms without a license. The agents testified that
these cases are difficult to prove and that U.S. Attorneys' offices frequently
decline to prosecute. They stated that a Federal statute specifically dedicated
to prohibiting firearms trafficking would help them disrupt, defeat, and
dismantle firearms trafficking organizations. In July 2011, Ranking Member
Elijah Cummings and Representative Carolyn Maloney introduced legislation
in the House to establish such a firearms trafficking statute. Senator Kirsten
Gillibrand has introduced a similar bill in the Senate. Congress should
consider and pass this legislation without delay.
Provide ATF with Adequate Resources to Combat Illegal Gun Trafficking,
Documents and testimony obtained by the Committee revealed that ATF line
agents were drastically under-resourced, resulting in deficient surveillance of
suspected straw purchasers and firearms traffickers. Over the past decade,
ATF's budget has not kept pace with its law enforcement responsibilities,
particularly in light of the exponential growth in illegal firearms trafficking to
Mexico. Congress should appropriate the additional resources ATF needs to
perform its mission and combat gun trafficking along the Southwest Border.
Repeal the Prohibition Against Reporting Crime Gun Trace Data. To
increase transparency by ATF and oversight by Congress, Congress should
repeal the prohibition against reporting crime gun trace data and require ATF
to provide yearly reports to Congress that include aggregate statistics about
crime gun trace data categorized by State and Federal Firearms Licensee,
as well as aggregate gun trace data for guns that are recovered in Mexico,
categorized by State and Federal Firearms Licensee, This information will
assist Congress in understanding the problem of gun trafficking along the
Southwest Border and assessing ATF's progress in fighting it.
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82
Endnotes
1 Letter from James M. Cole, Deputy Attorney General, Department of Justice,
to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform,
effli. (Dec. 2,2011).
2 Id.
3 Letter from Rep. Elijah E. Cummings, Ranking Member, House Committee on
Oversight and Government Reform, to Rep. Darrell E. Issa, Chairman, House Committee on
Oversight and Government Reform (Nov. 4, 2011).
4 Letter from Rep. Elijah E. Cummings, Ranking .Member, House Committee on
Oversight and Government Reform, to Rep. Darrell E. Issa, Chairman, blouse Committee on
Oversight and Government Reform (Oct. 28, 2011).
5 Minority Staff, House Committee on Oversight and Government Reform,
Outgunned: Laiv Enforcement Agents Warn Congress They Lack Adequate Tools to Counter Illegal
Firearms Trafficking (June 2011).
6 Minority Members, House Committee on Oversight and Government
Reform, Minority Forum on Law Enforcement Tools to Stop the Flood of Illegal Weapons (June 30,
2011 ).
7 Bureau of Alcohol, Tobacco, Firearms and Explosives, Analysis of Comments
to Proposed Multiple-Sale Reporting Requirement (May 17, 2011); see also Violence Policy Center,
Indicted: Types of Firearms and Methods of Gun Trafficking from the United States to Mexico as
Revealed in U.S. Court Documents (Apr. 2009).
8 Mexico Updates Death Toll in Drug War to 47,515, but Critics Dispute the Data,
New York Times (Jan. 11, 2012); Procuradun'a General de la Republica, Base de Datos por
Fallecimientos por Presunta Rhmlidad Delincucncial (online at www.pgr.gob.mx/temas%20
relevantes/estadistica/estadisticas.asp) (accessed Jan. 27, 2011).
9 Senate Committee on the Judiciary, Subcommittee on Crime and Terrorism,
Testimony of Lanny Breuer, Assistant Attorney General, Department of Justice, Combating
International Organized Crime: Evaluating Current Authorities, Tools, and Resources (Nov. 1,
2011 ).
10 Calderon Calls for Restoring Assault Weapons Ban, The Caucus Blog, New York
Times (May 20, 2010) (online at http://thecaucus.blogs.nytimes.eom/2010/05/20/calderon-
calls-for-restoring-assault-weapons-ban/) (accessed Jan. 27, 2011).
11 Department of Justice, Office of the Inspector General, Review ofATF's Project
Gunrunner (Nov. 2010).
12 Department of Justice, Department of Justice Agencies (online at wwvv.justice.
gov/agencies/index -org.html) (accessed on Jan. 20, 2011).
13 Department of Justice, Office of the Inspector General, Review ofATF's Project
Gunrunner (Nov. 2010),
14 Bureau of Alcohol, Tobacco, Firearms and Explosives, Phoenix Field Division
(online at www.atf.gov/field/phoenix/) (accessed on Jan. 20, 2011).
- 74 -
83
15 United States Attorney's Office for the District of Arizona, Office Overview
(online at www.justice.gov/usao/az/office_overview.htm!) (accessed on Jan. 20, 2011).
1 6 Department of Justice, Office of the Inspector General, Review ofATF's Project
Gunrunner (Nov. 2010).
17 Government Accountability Office, Firearm? Trafficking: U.S. Efforts to Combat
Anns Trafficking to Mexico Face Planning and Coordination Challenges (June 2009) (GAO-09-
709).
18 Id; Hou.se Committee on Oversight and Government Reform, Transcribed
Interview of Jason Weinstein (Jan. 10, 2012).
19 Department of Justice, Office of the Inspector General, Review’ of ATF's Project
Gunrunner (Nov. 2010).
20 Id.
21 House Judiciary Committee, Testimony of Eric H. Holder Jr., Attorney
General, Department of Justice, Oversight of the Justice Department (Dec. 8, 2011).
22 Department of Justice, Office of the Inspector General, Review of ATF's Project
Gunrunner (Nov. 2010).
23 Id.
24 Congressional Research Service, Gun Traff^icking and the Southwest Border
(Sept. 21, 2009) (R40733).
25 Department of Justice, Office of the Inspector General, Review ofATF's Project
Gunrunner (Nov. 2010).
26 Memorandum from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (June 22, 2006).
27 Memorandum from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (July 2, 2007).
28 Memorandum from Jennifer Maldonado and David Petermann, Assistant
U.S. Attorney!?, U.S. Attorney's Office, District of Arizona, to Paul Charlton, U.S, Attorney,
District of Arizona ( July 13, 2006),
29 Id.
30 Email from Laura Gwinn, Criminal Division, Department of Justice, to Kevin
Carwile, Criminal Division, Department of Justice (Mar, 16, 2010).
31 Memorandum from Jennifer Maldonado and David Petermann, Assistant
U.S. Attorneys, U.S. Attorney's Office, District of Arizona, to Paul Charlton, U.S, Attorney,
District of Arizona (July 13, 2006).
32 Memorandum from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (June 22, 2006).
- 75 -
84
33 Memorandum from Jennifer Maldonado and David Petermaim, Assistant
U.S. Attorneys, U.S. Attorney's Office, District of Arizona, to Paul Charlton, U.S. Attorney,
District of Arizona (July 13, 2006).
34 Email from Mark Latham, Bureau of Alcohol, Tobacco, Firearms and
Explosives, to Jennifer Maldonado and David Petermann, Assistant U.S. Attorneys, U.S.
Attorney's Office, District of Arizona (June, 20, 2006).
35 Email from Chuck Higman, Resident Agent in Charge, Tucson Office,
Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Louis
Quinonez, Group Supervisor, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms
and Explosives (Mar. 31, 2006).
36 Memorandum from Jennifer Maldonado and David Petermann, Assistant
U.S. Attorneys, U.S. Attorney's Office, District of Arizona, to Paul Charlton, U.S. Attorney,
District of Arizona (July 13, 2006).
37 Id.
38 hi.
39 Email from Lynnette Kimmins, Assistant U.S, Attorney, U.S, Attorney's
Office, District of Arizona, to Paul Charlton, U.S. Attorney, District of Arizona (July 14, 2011 ).
40 Email from Paul Charlton, U.S. Attorney, District of Ariz.ona, to Lynnette
Kimmins, Assistant U.S. Attorney, U.S. Attorney's Office, District of Arizona (July 14, 2011),
41 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan
(Oct, 6, 2006).
42 Id.
43 Email from James Small, Bureau of Alcohol, Tobacco, Firearms and
Explosives, to Brandon Garcia, Special Agent, Bureau of Alcohol, Tobacco, Firearms
and Explosives (Oct. 11, 2006) (Attachment; Bureau of Alcohol, Tobacco, Firearms and
Explosives, Surveillance of [Suspect] at Mesa Gun Show (Oct, 6, 2006)); email from Heidi
Dunn-Adkins, Assistant U.S. Attorney, U.S. Attorney's Office, District of Arizona, to Joelyn
Marlowe and Jennifer Maldonado, Assistant U.S. Attorneys, U.S, Attorney's Office for the
District of Arizona (Oct. 11, 2006) (Attachment: Tucson Police Department, VCIT Activity
Narratives 1010112006 - 1010712006 (Oct. 7, 2006)).
44 Email from Heidi Dunn-Adkins, Assistant U.S. Attorney, U.S. Attorney's
Office, District of Arizona, to Joelyn Marlowe and Jennifer Maldonado, Assistant U.S.
Attorneys, U.S. Attorney's Office for the District of Arizona (Oct. 11, 2006) (Attachment:
"VCIT Activity Narratives 1 0/01/2006 - 1 0/07/2006").
45 Memorandum from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (Dec. 5, 2006).
46 Id.
47 Id.
48 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan
(Feb. 23, 2007).
- 76 -
85
49 Id.
50 Memorandum from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr, 23, 2007).
51 Id.
52 Email from Chuck Higman, Resident Agent in Charge, Bureau of Alcohol,
Tobacco, Firearms and Explosives, to Adam Price, Bureau of Alcohol, Tobacco, Firearms and
Explosives, and Lieutenant Stiso, Tucson Police Department (Apr. 10, 2007).
53 Bureau of Alcohol, Tobacco, Firearms and F,xplosives, ATF Operational Plan
(Apr. 11, 2007).
54 Id.
55 Email from James Small, Bureau of Alcohol, Tobacco, Firearms and
Explosives, to Vicki Moore, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr. 18,
2007).
56 Memorandum from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations
Divi,sion, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr. 23, 2007).
57 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan
(May 7, 2007).
58 Id.
59 Id.
60 Id.
61 Bureau of Alcohol, Tobacco, Firearms and Explosives, Operational Plan (May
22, 2007).
62 Email from Athanasio Vlahoulis, Bureau of Alcohol, Tobacco, Firearms and
Explosives, to Juan Delgado and Chuck Higman, Bureau of Alcohol, Tobacco, Firearms and
Explosives, et al. (June 7, 2007).
63 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan
(June 26, 2007).
64 Id.
65 Memorandum from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Chief, Special Operations
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (July 2, 2007).
66 Email from Chuck Higman, Resident Agent in Charge, Bureau of Alcohol,
Tobacco, Firearms and Explosi\'e.s, to Larry Shiver, Regional OCDETF Coordinator, Bureau
of Alcohol, Tobacco, Firearms and Explosives (June 26, 2007).
67 Id.
68 Email from Laura Gwinn, Criminal Division, Department of Justice, to Bryan
Reeves and James Trusty, Criminal Divi.sion, Department of Justice (Sept. 28, 2009) ("Arizona
- 77 -
86
did not yet indict the case due to the original AUSA being appointed as a magistrate judge,
and the new AUSA apparently too busy to devote the necessary lime to putting the case
together.").
69 House Committee on Oversight and Government Reform, Transcribed
Interview of Jason Weinstein (Jan. 10, 2012).
70 Id.
71 Id.
72 Email from Laura Gwinn, Criminal Division, Department of Justice, to Kevin
Carwile and James Trusty, Criminal Division, Department of Justice (Sept. 23, 2009).
73 Email from Laura Gwinn, Criminal Division, Department of Justice, to James
Trusty, Criminal Division, Department of Justice (Mar. 16, 2010).
74 Email from Laura Gwinn, Criminal Division, Department of Justice, to Kevin
Carwile, Criminal Division, Department of Justice (Mar. 16, 2010).
75 Email from Laura Gwinn, Criminal Division, Department of Justice, to James
Trusty, Criminal Division, Department of Justice (May 17, 2010).
76 U.S. Attorney's Office, District of Arizona, Seven Individuals Charged with Cun-
trafficking Crimes (Nov. 9, 2010).
77 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plans
(Ocl. 18, 2007).
78 Bureau of Alcohol, Tobacco, Firearms and Explosives, Briefing Paper, Cross-
Border Firearms Operations (2011).
79 Id.
80 Email from Carson Carroll, Bureau of Alcohol, Tobacco, Firearms and
Explosives, Enforcement Program.s, to William Hoover, Assistant Director for Field
Operations, Bureau of Alcohol, Tobacco, Firearms and Explosives (Sept. 28, 2007).
81 Id.
82 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational
Plans (Oct. 18, 2007). On November 27, 2007, a criminal complaint was filed against Fidel
Hernandez and Carlos Morales-Valenzuela for the unlawful export of firearms without a
license. Hernandez was arrested in the United States the same day. See Criminal Complaint
(Nov. 27, 2007), United States v. Carlos Valentin Morales-Valenzuela and Fidel Hernandez, D. Ariz.
(No. 07-06964M).
83 Email from William Hoover, Assistant Director for Field Operations,
Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of Alcohol,
Tobacco, Firearms and Explosives, and William Newell, Special Agent in Charge, Phoenix
Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, et al. (Oct. 4, 2007).
84 Email from William Hoover, Assistant Director for Field Operations,
Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of Alcohol,
Tobacco, Firearms and Explosives (Oct. 5, 2007).
- 78 -
87
85 Email from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of
Alcohol, Tobacco, Firearms and Explosives (Oct. 6, 2007).
86 Id.
87 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plan
(Oct. 18, 2007): Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plans
(Nov. 1, 2007); Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Operational Plans
(Nov. 26, 2007).
88 Id.
89 Department of Justice, Meeting of the Attorney General with Mexican Attorney
General Medina Mora (Nov. 16, 2007).
90 Id.
91 Id.
92 Email from William Hoover, Assistant Director for Field Operations,
Bureau of Alcohol, Tobacco, Firearms and Explosives, to Carson Carroll, Bureau of Alcohol,
Tobacco, Firearms and Explosives (Oct. 5, 2007).
93 Email from Carson Carroll, Bureau of Alcohol, Tobacco, Firearms and
Explosives, to William Hoover, Assistant Director for Field Operations, Bureau of Alcohol,
Tobacco, Firearms and Explosives (Nov. 15, 2007).
94 Bureau of Alcohol, Tobacco, Firearms and Explosives, Operational Plan (Nov.
26, 2007).
95 Id.
96 Id.
97 Id.
98 Email from Robert Miskell United States Attorney's Office, District of
Arizona to Sandra Flansen, United States Attorney's Office, District of Arizona (Nov. 3,
2009) (Attachment; "TUCSON CRIMINAL DIVISION, SIGNIFICANT CASES - September,
2009").
99 Id.
100 Bureau of Alcohol, Tobacco, Firearms and Explosives, Operational Plan (Dec.
10, 2008).
101 Id.
102 Id.
103 Id.
104 Id.
105 Email from Matthew Allen, Office of Investigations, Department of
Homeland Security, to William Newell, Special Agent in Charge, Phoenix Field Division,
Bureau of Alcohol, Tobacco, Firearms and Explosives (Aug. 12, 2008).
- 79 -
88
106 Email from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Matthew Allen, Office of
Investigations, Department of Homeland Security (Aug. 1 2, 2008).
1 07 U.S. Attorney's Office, District of Arizona, Leaders Sentenced for Conspiracy that
Supplied Weapons to Sinaloan Cartel (Aug. 9, 2010).
108 Criminal Complaint (Dec. 10, 2008), United States v. Aldo Arizrnendiz, et al, D.
Ariz. (No. 08-0185.3M).
109 Id.
110 Id.
111 Id.
112 U.S. Attorney's Office, District of Arizona, Leaders Sentenced for Conspiracy that
Supplied Weapons to Sinaloan Cartel (Aug. 9, 2010).
113 Id.
114 Id.; Criminal Complaint (Dec. 10, 2008), United States v. Aldo Arizrnendiz, et al.,
D. Ariz. (No. 08-01853M).
115 Email from George Gillett, Assistant Special Agent in Charge, Phoenix
Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William Newell,
Special Agent in Charge, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and
Explosives (Jan. 26, 2010) (Attachment: "Operation: The Fast and the Furious").
116 Id.
117 Id.
118 Id.
119 Bureau of Alcohol, Tobacco, Firearms and Explosives, Briefing Paper (Jan. 8,
2010 ).
120 Id.
121 Id.
122 Memorandum from Emory Hurley, Assistant U.S. Attorney, U.S. Attorney's
Office, District of Arizona, to Mike Morrissey, Assistant U.S. Attorney, U.S. Attorney's Office,
District of Arizona (Jan. 5, 2010).
1 23 House Committee on Oversight and Government Reform, Transcribed
Interview of David Voth (June 30, 2011).
124 Id.
125 Bureau of Alcohol, Tobacco, Firearms and Explosives, Briefing Paper (Jan. 8,
2010).
1 26 House Committee on Oversight and Government Reform, Transcribed
Interview of William Newell (June 8, 2011).
127 Id.
- 80 -
89
128 Memorandum from Emor)' Hurley, Assistant U.S. Attorney, U.S. Attorney's
Office, District of Arizona, to Mike Morrissey, Assistant U.S. Attorney U.S. Attorney's Office,
District of Arizona (Jan. 5, 2010).
129 Id.
130 Email from Mike Morrissey, Assistant U.S. Attorney U.S. Attorney's Office,
District of Arizona, to Dennis Burke, U.S. Attorney, District of Arizona (Jan. 5, 2010).
131 Email from Dennis Burke, U.S. Attorney District of Arizona, to Mike
Morrissey Assistant U.S. Attorney, U.S. Attorney's Office, District of Arizona (Jan. 7, 2010).
132 House Committee on Oversight and Government Reform, Transcribed
Interview of Dennis Burke (Aug. 18, 2011).
133 Memorandum from Emory Hurley, Assistant U.S. Attorney, U.S. Attorney's
Office, District of Arizona, to Dennis Burke, U.S. Attorney, District of Arizona (Aug. 16,
2010 ),
134 Department of Justice, Drug Enforcement Administration, Organized Crime
Drug Enforcement Task Forces (online at www.justice.gov/dea/programs/ocdetf.htm)
(accessed on Jan. 27, 2012).
135 Bureau of Alcohol, Tobacco, Firearms and Explosives, Organized Crime Drug
Enforcement Task Force Application for Operation The Fast and the Furious (Jan. 2010).
136 House Committee on Oversight and Government Reform, Transcribed
Interview of William McMahon (June 28, 2011).
137 Email from George Gillett, Assistant Special Agent in Charge, Phoenix
Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William Newell,
Special Agent in Charge, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and
Explosives (Jan. 26, 2010) (Attachment: "Operation: The Fast and the Furious"),
138 Email from George Gillett, Assistant Special Agent in Charge, Phoenix
Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William Newell,
Special Agent in Charge, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and
Explosives (Jan. 26, 2010).
139 Email from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William McMahon,
Deputy Assistant Director for Field Operations, Bureau of Alcohol, Tobacco, Firearms and
Explosives (Feb, 5, 2010).
140 House Committee on Oversight and Government Reform, Transcribed
Interview of Dennis Burke (August 18, 2011).
141 Email from Emory Hurley, Assistant U.S. Attorney, U.S. Attorney's Office,
District of Arizona, to Patrick Cunningham, Assistant U.S. Attorney U.S. Attorney's Office,
District of Arizona (Feb. 22, 2010); Email from Emory Hurley, Assistant U.S. Attorney, U.S.
Attorney's Office, District of Arizona, to Laura Gwinn, Department of Justice, Criminal
Division (Mar. 15, 2010),
142 House Committee on Oversight and Government Reform, Transcribed
Interview of Olindo Casa (Apr. 28, 2011).
- 81 -
90
143 House Committee on Oversight and Government Reform, Transcribed
Interview of John Dodson (Apr. 26, 2011).
144 House Committee on Oversight and Government Reform, Transcribed
Interview of John Dodson (Apr. 26, 2011).
1 45 House Committee on Oversight and Government Reform, Transcribed
Interview of William Hoover (July 21, 2011).
146 Id.
147 Email from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to William McMahon,
Deputy Assistant Director for Field Operations, Bureau of Alcohol, Tobacco, Firearms and
Explosives (Apr. 27, 2010).
148 See e.g., Bureau of Alcohol, Tobacco, Firearms and Explosives, SWB Briefing
Paper (June 11, 2010) (indicating that Phoenix ATF agents continued "conducting almost
daily surveillance" of straw purchaser transactions); Email from David Voth, Group
Supervisor, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives,
to Federal Firearms Licensee (Aug. 25, 2010) (encouraging a cooperating gun dealer to
complete a large purchase order to a suspected straw purchaser).
149 Email from Federal Firearms Licensee to David Voth, Phoenix Field Division,
Bureau of Alcohol, Tobacco, Firearms and Explosives (Jun. 17, 2010),
150 Email from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to David Voth, Group
Supervisor, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and Explosives
(July 14, 2010),
151 Email from Federal Firearms Licensee, to David Voth, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives (Aug. 25, 2010).
152 Email from David Voth, Group Supervisor, Phoenix Field Division, Bureau
of Alcohol, Tobacco, Firearms and Explosives, to Federal Firearms Licensee (Aug. 25, 2010).
153 House Committee on Oversight and Government Reform, Transcribed
Interview of Andre Howard (May 18, 2011).
154 House Committee on Oversight and Government Reform, Transcribed
Interview of William Newell (June 8, 2011).
155 Id.
156 Id.
157 House Committee on Oversight and Government Reform, Transcribed
Interview of Dennis K. Burke (Aug, 18, 201 1).
158 Indictment (Jan 19, 201 1 ), United States v. Jaime Avila, Jr., et al, D. Ariz. (No.
CR-1 1-126 PHX JAT (LOA)).
159 House Committee on Oversight and Government Reform, Testimony of Peter
J. Forcelli, Special Agent, Phoenix Field Division, Bureau of Alcohol, Tobacco, Firearms and
- 82 -
91
Explosives, Hearing on Operation Fast and Furious: Reckless Decisions, Tragic Outcomes (June
15,2011).
160 Id.
161 House Committee on Oversight and Government Reform, Transcribed
Interview of Peter J. Forcelli (Apr. 28, 2011).
162 Id.
163 House Committee on Oversight and Government Reform, Transcribed
Interview of Kenneth Melson (July 4, 2011).
164 Id.; House Committee on Oversight and Government Reform, Transcribed
Interview of Larry Alt (Apr. 27, 2011). Memorandum from Thomas E, Karmgard, ATF
Division Counsel (Phoenix) to the U.S. Attorney's Office for the District of Arizona, ATF
Division Counsel Notes Relating to "Corpus Delicti" Issue in Strain Purchaser Case (Feb. 24, 2010).
165 House Committee on Oversight and Government Reform, Transcribed
Interview of Peter Forcelli (Apr. 28, 2011).
166 House Committee on Oversight and Government Reform, Transcribed
Interview of William Newell (June 8, 2011).
167 Memorandum from Thomas E. Karmgard, ATF Division Counsel (Phoenix)
to the U.S. Attorney's Office for the District of Arizona, ATF Division Counsel Notes Relating to
"Corpus Delicti” Issue in Strazv Purchaser Case (Feb. 24, 2010).
168 House Committee on Oversight and Government Reform, Transcribed
Interview of David Voth (June 30, 2011).
169 Id.
170 Id.
171 Id.
172 Senate Committee on Appropriations, Subcommittee on Commerce, Justice,
Science, and Related Agencies, Testimony of the Eric H. Holder, Jr., Attorney General
Department of Justice, Hearing on the FY 12 Dept, of Justice Budget (Mar. 10, 2011); House
Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney General Department
of Justice, Oversight Hearing on the United States Department of Justice (May 3, 2011); House
Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney General Department of
Justice, Oversight Hearing on the United States Department of Justice (Dec, 8, 201 1 ).
173 Senate Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney
General Department of Justice, Hearing on Justice Department Oversight (Nov. 8, 2011).
1 74 House Judiciary Committee, Testimony of the Eric H. Holder, Jr., Attorney
General Department of Justice, Oversight Hearing on the United States Department of Justice
(Dec. 8, 2011).
175 Memorandum from Michael F. Walther, National Drug Intelligence Center,
to the Attorney General through the Acting Deputy Attorney General, Department of
Justice, Weekly Report for July 5 through July 9, 2010 (July 5, 2010).
- 83 -
92
176 Letter from Eric H. Holder, Jr., Attorney General, Department of Justice, to
Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, et
al (Oct. 7, 2011).
177 Email from Monty Wilkinson, Deputy Chief of Staff and Counselor to the
Attorney General, Department of Justice, to Dennis K. Burke, U.S. Attorney, District of
Arizona (Dec. 14, 2010).
178 Email from Dennis K. Burke, U.S. Attorney, District of Arizona, to Monty
Wilkinson, Deputy Chief of Staff and Counselor to the Attorney General, Department of
Justice (Dec. 15, 2010).
179 U.
180 Email from Dennis K. Burke, U.S. Attorney, District of Arizona, to Monty
Wilkinson, Deputy Chief of Staff and Counselor to the Attorney General, Department of
Justice (Dec. 15, 2010).
181 Email from Monty Wilkinson, Deputy Chief of Staff and Counselor to the
Attorney General, Department of Justice, to Dennis K. Burke, U.S. Attorney, District of
Arizona (Dec. 15, 2010).
182 Email from Dennis K. Burke, U.S. Attorney, District of Arizona, to Monty
Wilkinson, Deputy Chief of Staff and Counselor to the Attorney General, Department of
Justice (Dec. 15, 2010).
183 Email from Monty Wilkinson, Deputy Chief of Staff and Counselor to the
Attorney General, Department of Justice, to Dennis K. Burke, U.S. Attorney, District of
Arizona (Dec. 15, 2010).
184 House Committee on Oversight and Government Reform, Transcribed
Interview of Dennis Burke (Dec. 13, 2011).
185 Senate Committee on the Judiciary, Testimony of Eric H. Holder, Jr., Attorney
General, Department of Justice, Hearing on Oversight of the U.S. Department of justice (Nov. 8,
2011 ).
186 Letter from Ronald Weich, Assistant Attorney General, Office of Legislative
Affairs, Department of Justice, to Rep. Darrell E. Issa, Chairman, House Committee on
Oversight and Government Reform, et at. (Jan. 27, 2012).
187 House Committee on Oversight and Government Reform, Transcribed
Interview of Gary Grindlcr (Dec. 14, 2011),
188 House Committee on Oversight and Government Reform, Transcribed
Interview of Kenneth Melson (July 4, 2011); House Committee on Oversight and
Government Reform, Transcribed Interview of William Hoover (July 21, 2011).
189 House Committee on Oversight and Government Reform, Transcribed
Interview of Gary Grindler (Dec. 14, 2011).
190 House Committee on Oversight and Government Reform, Transcribed
Interview of William Hoover (July 21, 2011).
191 House Committee on Oversight and Government Reform, Transcribed
Interview of Gary Grindler (Dec. 14, 2011).
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93
192 House Committee on Oversight and Government Reform, Transcribed
Interview of Kenneth Melson (July 4, 2011),
193 Id.
194 Id.
195 Id.
196 House Committee on Oversight and Government Reform, Transcribed
Interview of William Hoover (July 21, 2011).
197 Id.
1 98 House Committee on Oversight and Government Reform, Transcribed
Interview of Mark Chait (July 20, 201 1).
199 House Committee on Oversight and Government Reform, Transcribed
Interview of William McMahon (June 28, 2011).
200 House Committee on Oversight and Government Reform, Transcribed
Interview of William Hoover (July 21, 2011).
201 Id.
202 House Committee on Oversight and Government Reform, Transcribed
Interview of Dennis Burke (Aug, 18, 2011).
203 Id.
204 Email from William Newell, Special Agent in Charge, Phoenix Field
Division, Bureau of Alcohol, Tobacco, Firearms and Explosives, to Dennis Burke, U.S.
Attorney, District of Arizona (June 24, 2010).
205 Memorandum from Emory Hurley, Assistant U.S Attorney, U.S. Attorney's
Office, District of Arizona, to Dennis Burke, U.S. Attorney, District of Arizona (Aug. 16,
2010 ).
206 Senate Committee on the Judiciary, Testimony of Lanny Breuer, Assistant
Attorney General, Criminal Division, Department of Justice, Hearing on Combating
International Organized Crime: Evaluating Current Authorities, Tools, and Resources (Nov. 1,
2011 ).
207 House Committee on Oversight and Government Reform, Transcribed
Interview of Jason Weinstein (Jan. 10, 2012).
208 18U.S.C. §2516.
209 Julie Wuslich, Survey of Title III, United States Attorneys' Bulletin (Jan. 2007).
210 Id.
211 House Committee on Oversight and Government Reform, Transcribed
Interview of Jason Weinstein (Jan. 10, 2012).
212
Id.
213
Id.
214
Id.
- 85 -
94
215 Senate Committee on the Judiciary, Testimony of Lanny Breuer, Assistant
Attorney General, Criminal Division, Department of Justice, Hearing on Combating
International Organized Crime: Evaluating Current Authorities, Tools, and Resources, llZth Cong.
(Nov. 1,2011).
216 Email from Kevin Carwile, Criminal Division, Department of Justice, to
Jason Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of
Justice (Mar. 16, 2010).
21 7 Email from Jason Weinstein, Deputy Assistant Attorney General, Criminal
Division, Department of Justice, to Kevin Carwile, Criminal Division, Department of Justice,
(Mar. 16, 2010).
21 8 Email from Kevin Carwile, Criminal Division, Department of Justice, to
Jason Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of
Justice, (Mar. 16, 2010).
219 House Committee on Oversight and Government Reform, Transcribed
Interview of Jason Weinstein (Jan. 10, 2012).
220 Email from Jason Weinstein, Deputy Assistant Attorney General, Criminal
Division, Department of Justice, to James Trusty, Criminal Division, Department of Justice, et
at. (Apr. 12, 2010).
221 House Committee on Oversight and Government Reform, Transcribed
Interview of Jason Weinstein (Jan. 10, 2012).
222 Id.
223 Id.
224 Id.
225 Id.
226 Id.
227 House Committee on Oversight and Government Reform, Transcribed
Interview of Jason Weinstein (Jan. 10, 2012); email from Jason W'einstein, Deputy Assistant
Attorney General, Criminal Division, Department to Justice, to William Hoover, Deputy
Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (Apr. 20, 2010).
228 Email meeting request from Jason Weinstein, Deputy Assistant Attorney
General, Criminal Division, Department to Justice, to James Trusty, Criminal Division,
Department of Justice, et al. (Apr. 28, 2010).
229 Handwritten Notes, Laura Sweeney, Meeting with William Hoover, Deputy
Director, Bureau of Alcohol, Tobacco, Firearms and Explosives, et. al. (Apr. 28, 2010).
230 House Committee on Oversight and Government Reform, Transcribed
Interview of Jason Weinstein (Jan. 10, 2012).
231
Id.
232
Id.
233
Id,
- 86 -
95
234 Senate Judiciary Committee, Combating International Organized Crime:
Evaluating Current Authorities, Tools, and Resources (Nov. 1, 2011),
235 Email from Anthony Garcia, Attache to Mexico, Department of Justice, to
Adam Lurie, Department of Justice, et al. (Feb. 4, 2011).
236 Id.
237 Id.
238 Id.
239 Email from Jason Weinstein, Deputy Assistant Attorney General, Department
of Justice, to Adam Lurie, Department of Justice, et al. (Feb. 4, 2011).
240 Email from Anthony Garcia, Attache to Mexico, Department of Justice, to
Mary Rodriguez, Department of Justice, et al. (Feb. 8, 2011).
241 Id.
242 Id.
243 Letter from Sen, Charles Grassley, Ranking Member, Senate Judiciary
Committee, to Eric H. Flolder, Jr„ Attorney General, Department of Justice (Jan. 27, 2011).
244 Letter from Ronald Welch, Assistant Attorney General, Office of Legislative
Affairs, Department of Justice, to Sen. Charles Grassley, Ranking Member, Senate Judiciary
Committee (Feb, 4, 2011).
245 Letter from James M, Cole, Deputy Attorney General, Department of Justice,
to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform,
et al. (Dec, 2, 2011),
246 Letter from James M. Cole, Deputy Attorney General, Department of Justice,
to Rep, Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform,
et al. (Dec. 2,2011),
247 Handwritten Notes, Faith Burton, Special Counsel, Office of Legislative
Affairs, Department of Justice, Meeting with Kenneth Melson, Acting Director, Bureau of
Alcohol, Tobacco, Firearms and Explosives, et at. (Jan. 28, 2011).
248 Handwritten Notes, Faith Burton, Special Counsel, Office of Legislative
Affairs, Department of Justice, Meeting with William Hoover, Deputy Director, Bureau of
Alcohol, Tobacco, Firearms and Explosives, et al. (Feb. 1, 2011).
249 House Committee on Oversight and Government Reform, Transcribed
Interview of Kenneth Melson (July 4, 2011); House Committee on Oversight and
Government Reform, Transcribed Interview of William Hoover (July 21, 2011).
250 Email from Dennis Burke, U.S. Attorney, District of Arizona, to Jason
Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of Justice, et
a/. (Jan. 31, 2011)."
251 Sec, e.g., Email from Dennis Burke, U.S. Attorney, District of Arizona, to Jason
Weinstein, Deputy Assistant Attorney General, Criminal Division, Department of Justice,
et al. (Feb. 2, 201 1) (requesting that the Department of Justice insert the following language
into the Department's response to Sen. Grassley's January 27, 2011, letter: "Regarding the
- 87 -
96
allegations repeated in your letter that ATF in any way "sanctioned", [sic] had knowledge
of, or permitted weapons purchased on January 16, 2010 in Arizona to reach the Republic of
Mexico is categorically false,").
252 House Committee on Oversight and Government Reform, Transcribed
Interview of Dennis Burke (Dec. 13, 2011).
253 Letter from Tobin Romero, Partner, Williams & Connelly LLP, Counsel, to
Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform
(Jan. 19, 2011).
254 House Committee on Oversight and Government Reform, Transcribed
Interview of Deraiis Burke (Dec, 13, 2011).
255 House Committee on Oversight and Government Reform, Transcribed
Interview of Jason Weinstein (Jan. 10, 2012).
256 Id.
257 Id.
258 Id.
259 Senate Committee on Appropriations, Subcommittee on Commerce, Justice,
Science, and Related Agencies, Testimony of the Eric H. Holder, Jr., Attorney General
Department of Justice, Hearing on the FY 12 Dept, of justice Budget (Mar. 10, 2011),
260 Id.
261 Email from James Cole, Deputy Attorney General, Deparhnent of Justice,
to Angel Moreno, John Murphy, Dennis Burke, Kenneth Gonzales, and Laura Duffy, U.S.
Attorneys (Mar. 9, 2011).
262 ATF Chief Removed Over Border Guns Scandal, Los Angeles Times (Aug. 30,
2011).
263 Issa Subpoenas AZ US Attorney Criminal Division Chief, Examiner (Jan. 19,
2012 ).
264 ATF Chief Removed Over Border Guns Scandal, Los Angeles Times ( Aug. 30,
201 1) ; Three ATF Officials Reassigned in Shakcup Over Fast and Furious, Main Justice (Jan, 6,
2012) (online at www.mainjustice.eom/2012/01/06/three-atf-officials-reassigned-in-shakeup-
over-fast-and-furious/) (accessed Jan. 27, 2012).
265 Id.
266 Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF Acting Director
Jones Announces New Staff Assignments (Oct. 5, 2011); Tlvee ATF Officials Reassigned in Shakeup
Over Fast and Furious, Main Justice (Jan. 6, 2012) (online at www.mainjustice.eom/2012/01/06/
three-atf-officials-reassigned-in-shakeup-over-fast-and-furious/) (accessed Jan. 27, 2012).
267 Id.
268 ATF Officials Suspended overpast and Furious, Washington Examiner (Jan. 10,
2012 ).
- 88 -
97
269 ATF Official Newell Says Whistleblowers Were Silent on Fast and Furious, Main
Justice (Sept. 22, 201 i) (online at www.mainjustice.eom/2011/09/22/atf-official-newell-says-
whistleblow'ers-were-silent-on-fast-and-furious/) (accessed Jan. 27, 2012).
270 'Fast and Furious' Whistleblowers Struggle Six Months After Testifying Against
ATF Program, Fox News (Nov. 30, 2011).
271 Id.
272 Letter from James M. Cole, Deputy Attorney General, Department of Justice,
to Rep. Darrell E. Issa, Chairman, Flouse Committee on Oversight and Government Reform,
et al. (Jan. 27,2012).
273 Id.
274 Id.
275 Federal Judge Rejects Challenge to Gun Dealer Rules, Washington Post (Jan. 14,
2012 ).
- 89 -
98
ONE HUNDRED TWELFTH CONGRESS
Congress of tijc ®nttc& States
House of Eepresentatibes
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
21 57 Rayburn House Office Building
Washington, DC 20515-6143
Measttr iZC?i2:S-a355
Opening Statement
Rep. Elijah E. Cummings, Ranking Member
Hearing on “Fast and Furious: Management Failures at the Department of Justice”
February 2, 2012
Mr. Chairman, when the Committee started this investigation almost a year ago, you and
I made pledges to the family of Agent Brian Terry to find out what led to the release of hundreds
of firearms to criminal networks on both sides of the border. We pledged to follow the facts
wherever they may lead and provide the public with answers.
Mr. Chairman, I want to acknowledge your efforts here. Over the past year, we devoted
incredible amounts of time, money, and energy to investigating this issue. We interviewed 22
witnesses, including senior officials al the Department of Justice and ATF. We also reviewed
thousands of pages of documents, and we held four lull Committee hearings on this topic.
Because of our extensive work, we have had concrete results. The Committee has
exposed a five-year pattern of gunwalking operations run by the Phoenix Division of ATF and
the Arizona U.S. Attorney's Office. More importantly, we have put a stop to it. This is a
significant accomplishment, and I commend you for it.
In addition, we can now explain to the public how this series of reckless operations
originated and evolved over the past five years. I ask unanimous consent to place into the record
a report I sent to Members earlier this week.
This 95-page report, called Fatally Flav-’ed: Five Years of Gunwalking in Arizona,
provides a detailed and comprehensive account of what we learned in our investigation.
It documents how suspects in 2006 and 2007 trafficked more than 450 firearms during
Operation Wide Receiver as ATF agents who knew they had probable cause chose not to make
arrests in order to build bigger cases. As one field agent said at the time, “We want it all.”
It documents the Hernandez case in 2007, in which suspects purchased 200 firearms as
ATF failed repeatedly to coordinate interdiction with Mexican officials. Despite alerting then-
Attorney General Mukasey about these failed operations, they continued.
99
It documents the Medrano case in 2008, in which ATF agents watched in real time as
suspects, who were part of a trafficking ring that bought more than 100 firearms, packed
w'eapons into the backseat of a car and drove them across the border.
And it documents Operation Fast and Furious, during which the same ATF Special Agent
in Charge of the Phoenix Field Division in all three previous operations chafed against an order
from the Deputy Director of ATF to shut down the operation. As the agent stated, “1 don’t like
HQ driving our cases.” Instead, field agents continued to encourage gun dealers to sell firearms
to suspects for months.
There are several things that our investigation did not find. We found no evidence that
agents or prosecutors in Arizona acted in bad faith. They sincerely wanted to put away gun
traffickers and higher level targets. In pursuit of that goal, however, they lost sight of the
predictable collateral damage of letting guns walk.
In addition, contrary to many unsubstantiated allegations, the Committee obtained no
evidence indicating that the Attorney General authorized gunwalking. None of the 22 witnesses
we interviewed claimed to have spoken with the Attorney General about the tactics used in
Operation Fast and Furious before this controversy broke.
Mr. Chairman, although you desen'e credit for exposing these operations over the last
five years, we part ways in what w'e should do next. You now appear intent on escalating
controversy and promoting unsubstantiated allegations in a campaign that looks more like an
election-year witch hunt than an even-handed investigation.
This is the sixth time the Attorney General has testified on these issues.
In contrast, you have never once called the former head of ATF to testify at a public
hearing, even though ATF was the agency responsible for these reckless programs. And
although Attorney General Holder has answered questions repeatedly, you have refused to even
interview former Attorney General Mukasey.
When I was just starting out in my law practice, a veteran attorney gave me some advice,
He said, “you have to take the facts as you find them.” Now that we have the facts, I hope we
can put aside the politics and the rhetoric and focus on concrete reforms to ensure that this never
happens again.
2
100
Mr. Cummings. This 95-page report, called Fatally Flawed: Five
Years of Gun-Walking in Arizona, provides a detailed and com-
prehensive account of what we learned in our investigation. It doc-
uments how suspects in 2006 and 2007 trafficked more than 450
firearms during Operation Wide Receiver as ATF agents, who knew
they had probable cause, chose not to make arrests in order to
build bigger cases. As one field agent said at the time, “We want
it all.”
It documents the Hernandez case in 2007 in which suspects pur-
chased 200 firearms as ATF failed repeatedly to coordinate inter-
diction with Mexican officials. Despite alerting then Attorney Gen-
eral Mukasey about these failed operations, they continued.
It documents the Medrano case in 2008 in which ATF agents
watched in real time as suspects who were part of a trafficking
ring that bought more than 100 firearms packed weapons into the
back seat of a car and drove them across the border.
It documents operation Fast and Furious, during which the same
ATF Special Agent in charge of the Phoenix field division in all
three previous operations chafed against an order from the Deputy
Director of ATF to shut down the operation. As the agent stated,
“I don’t like headquarters driving our cases.” Instead, field agents
continued to encourage gun dealers to sell firearms to suspects for
months.
There are several things that our investigation did not find. We
found no evidence that agents or prosecutors in Arizona acted in
bad faith. They sincerely wanted to put away gun traffickers and
higher-level targets. In pursuit of that goal, however, they lost
sight of predictable collateral damage of letting guns walk.
In addition, contrary to many unsubstantiated allegations, the
committee obtained no evidence indicating that the Attorney Gen-
eral authorized gun-walking. None of the 22 witnesses we inter-
viewed claimed to have spoken with the Attorney General about
the tactics used in Operation Fast and Furious before this con-
troversy broke.
Mr. Chairman, although you deserve credit for exposing these op-
erations over the last 5 years, we part ways in what we should do
next. You now appear intent on escalating controversy and pro-
moting unsubstantiated allegations in a campaign that looks more
like an election year witch hunt than even-handed investigation.
This is the sixth time — the sixth time the Attorney General has
testified on these issues. In contrast, you have never once called
the former head of the ATF to testify at a public hearing, even
though ATF was the agency responsible for these reckless pro-
grams. And although Attorney General Holder has answered ques-
tions repeatedly, you refuse to even interview former Attorney Gen-
eral Mukasey.
When I was just starting as a lawyer some 30-some years ago,
the senior partner in the law firm said to me, young man, you have
to take the facts as you find them. You cannot manufacture them.
Now that we have the facts, I hope that we can put aside the
politics and the rhetoric and focus on concrete reforms to ensure
that this never, ever, never, ever happens again.
With that, I yield back.
Chairman ISSA. I thank the gentleman.
101
Now I ask unanimous consent that the majority memo and re-
lated materials he entered in the record.
Without objection, so ordered.
[The information referred to follows:]
102
MEMORANDUM
To: Republican Members, Committee on Oversight and Government Reform
From: Committee Staff for Chairman Darrell Issa and Senator Charles
Grassley, Ranking Member, Senate Judiciary Committee
Date: February 1, 2012
Re: Main Justice: Extensive Involvement in Operation Fast and Furious
This memorandum provides supplemental information detailing Main Justice’s involvement in
Operation Fast and Furious. For months, the Department blamed Fast and Furious on the U.S.
Attorney’s Office for the District of Arizona and the Bureau of Alcohol, fobacco. Firearms, and
Explosives (ATF) - notwithstanding the fact that they are both components of the Department of
Justice. In fact. Main Justice had much greater knowledge of, and involvement in, Fast and
Furious than it has previously acknowledged. A discussion of the key issues follows.
I. The Fast and Furious Investigation Failed in its Goal
From the beginning of the congressional investigation, ATF officials claimed that the
goal of Operation Fast and Furious was to identify and take down an entire gun trafficking
operation. Former Special Agent in Charge (SAC) William Newell, who served as head of
ATF’s Phoenix Field Division during Fast and Furious, aimed to reach the highest levels of the
criminal organization:
The goal of the investigation . . . was to identify the whole network,
knowing that if we took off a group of straw purchasers this, as is the case
in hundreds of firearms trafficking investigations, some that 1 personally
worked as a case agent, you take off the low level straw purchaser, al!
you’re doing is one of - you’re doing one of two things, one of several
things. You’re alerting the actual string puller that you’re on to them, one,
and, two, all they are going to do is go out and get more straw purchasers.
Our goal in this case is to go after the decision maker, the person at
the head of the organization, knowing that if we remove that person, in
the sense of prosecute that person, successfully, hopefully, that we would
have much more impact than just going after the low level straw
purchaser.'
With this goal in mind, ATF purposefully failed to confront straw purchasers and interdict guns.
Disrupting and deterring the illegal activity took a backseat to the lofty goal of dismantling the
entire organization. SAC Newell believed the straw purchasers were only the bottom rung of a
complex organization:
Transcribed interview of William Nevveii, at 91-92 (June 8, 201 1) (emphasis added) [hereinafter Newel! Tr.].
103
Q. Right, and in order to achieve that goal, if in order to not tip them,
if agents wanted to be more aggressive about attempting to
interdict and discourage ... the straw purchasing that was going on
right in front of them that that would have been not consistent with
the goal of the strategy as outlined in this paper, right?
A. The goal of the investigation ... is using the straw purchasers,
identifying the straw purchasers, to get, using information we
gleaned from them in a sense of where they’re going, where
they’re dropping the guns off, to identify the middlemen, to
identify the decision makers and seize assets when appropriate,
and we have the ability to do that, identify bank accounts, identity
transporters, identify anything so that when we make the
arrests, do the takedown, that we take down the whole
organization.'
ATF insisted that the techniques and strategies used in Operation Fast and Furious were
necessary to take down a complicated gun trafficking operation. In reality, however, the network
was not complex. Once believed to be an intricate web, it actually included a small cadre of
about 40 straw purchasers - only five of whom purchased 70% of the weapons - one ringleader,
and two cartel associates who were the link to the Sinaloa Cartel. The whole point of Fast and
Furious - an operation that allowed nearly 2,000 guns to get into the hands of the Mexican drug
cartels - was to identify this ringleader and these two cartel associates.
To make matters worse, federal law enforcement officials had identified this ringleader as
early as December 2009. On December 14, 2009, the Drug Enforcement Administration (DEA)
contacted the ATF case agents in charge of Fast and Furious and alerted them that one of the
telephone numbers ATF had submitted for de-confliction was related to an ongoing investigation
in which DEA had obtained a state wiretap. A December 14, 2009 internal DEA e-mail confirms
this contact: “We checked with ATF and they have the gun source and the courier identified.
They have a pole cam on the gun source’s house. We scheduled a meeting tomorrow with the
case agent to make sure we don’t inadvertently step on each olher.”^
ATF Group Supervisor David Voth and the case agents attended a December 15, 2009
meeting in which DEA shared with ATF the information they had thus far acquired on the
ringleader, Manuel Celis-Acosta."' ATF investigators also received access to a DEA wire room,
used to monitor live wiretap intercepts, and the resulting information gleaned from the wires. A
December 16, 2009, internal DEA e-mail recounting the meeting said: “They are going to
OCDETF [Organized Crime Drug Enforcement Task Force] the case and work with us if a gun
load moves. They said the best way is to try to stop the load as it goes across into Mexico which
" Newell Tr. at 92-93 (emphasis added).
^ E-mail from IDEA] lo [DEA] (Dec. 14, 2009).
DEA Report of Investigation (ROl) 50, “Deconfliction Meeting with DEA Personnel on December 15, 2009."
2
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adds a whole bunch of charges. . . [W]e have the conspiracy through the wire which will help
significantly with charging down the road.”^
By December 18, 2009, the case that became Fast and Furious had expanded to include
15 interconnected straw purchasers known to have purchased 500 firearms.* These guns had a
"time-to-crime,” the amount of time between purchase and use to commit a crime, of as little as
one day, a typical indicator of trafficking. Such data illustrates that ATF was fully aware that the
guns being regularly purchased by the straw buyers - transactions which ATF allowed to
proceed - were flowing to violent criminals.
Intercepts from the DEA wiretap provided the probable cause necessary for ATF to make
arrests at least as early as December 2009, or, at the very least, supplied the necessary predicate
to use other investigative techniques to disrupt the illegal activity and seize the weapons.’ For
instance, the intercepts contained information showing that Celis-Acosta was to receive money
to traffic the weapons. Although they were destined for Juarez, Mexico, he didn’t want to take
them there in person.*
ATF, however, did not act on this information. Agents could have arrested Celis-Acosta
in December 2009 and used his arrest to work their way up the ladder to the two cartel
associates.'^ Instead, ATF wanted to get its own federal wiretaps and create its own big case.
This decision ensured that Fast and Furious lasted nearly a year longer, with 1,500 more guns
being purchased - including the guns bought by Jaime Avila in January 2010 that were found at
the murder scene of Border Patrol Agent Brian Terry.
When ATF finally brought the ringleader, Celis-Acosta, in for his proffer after his
indictment in January 2011, ATF learned the names of the two cartel associates.'* These were
the “big fish” that Newell had hoped to catch as a result of Fast and Furious and the federal
wiretaps. Because the ATF wiretaps and ATF agent surveillance had thus far failed to identify
these associates, the proffer was the first time ATF identified these individuals.
Shockingly, though, other federal law enforcement components of the Department of
Justice were already aware of the two cartel associates that ATF had finally identified. Their
names appeared frequently in DF.A call logs provided to ATF - in December 2009."
Inexplicably, ATF failed to review all the materials DEA had provided, missing these prime
investigative targets.
* E-mail from [DEA] to IDEA) (Dec. 16. 2009).
* E-mail from Kevin Simpson, Intelligence Officer, Phoenix Field {nlelligencc Group (FIG), ATF, to David Voth
(Dec, 18.2009).
■ Meeting with Drug Enforcement Administration and Congressional Staff (Oct. 20. 2011) [hereinafter DEA
meeting],
^ Federal Bureau of Investigation l-D-302 281C-AQ-63002 1-6 (Jan. 17. 2010) [hereinafter FD-302].
DEA Meeting, supra note 7.
Transcribed interview with David Voth at 126-127 (June 30, 201 1).
" DEA Meeting, supra note 7.
105
Additionally, DBA and the Federal Bureau of Investigation (FBI^ had jointly opened a
separate investigation speciOcally targeting these two cartel associates.'" As early as mid-
January 2010, both agencies had collected a wealth of information on these associates. Yet,
ATF spent the next year engaging in the reckless tactics of Fast and Furious in attempting to
identify them.
During the course of this separate investigation, the FBI designated these two cartel
associates as national security assets.'”' In exchange for one individual’s guilty plea to a minor
count of “Alien in Possession of a Firearm,” both became FBI informants and are now
considered to be un indictable.'^ This means that the entire goal of Fast and Furious - to target
these two individuals and bring them to Justice- was a failure. ATF’s discovery that the primary
targets of their investigation were not indictable was “a major disappointment.”"’
Nevertheless, other ATF officials have tried to claim that the cartel associates are not
necessarily untouchable. For example. Acting Deputy ATF Director Billy Hoover expressed his
belief that any such status was not final;
Q. In this ongoing investigation we’ve learned that some of these guys
may be unindictable. Have you learned that as well?
A. No, sir. I’m not sure that’s the final answer, and I’m not sure there
is a final answer.
Q. So if they’re paid [informants] and they're on the payroll that
they’re indictable? Hypothetically?
A. Hypothetically, no one is unindictable. That’s the way I perceive
this, no one is unindictable.'’
The Department of Justice has shown little concern for these troubling facts. In June
2011, when the Deputy Attorney General became aware of the lack of information-sharing
among these three Department components - ATF, DBA, and the FBI - and the fact that the FBI
viewed the targets of Fast and Furious as assets, his response was simply, “We will look into it. .
. All he said was we will have to look into it. There was very little expression.”** This reaction
and lack of follow-through typify the serious management failures that occurred throughout all
levels of the Department during Fast and Furious.
Meeting with Federal Bureau of Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco,
Firearms, and Explosives, and Congressional Staff at Robert F. Kennedy Building, Justice Command Center, Oct. 5,
20t 1 i0:00 AM [hereinafter FBt MeettngJ. See also ttead Shot, Organiaed Crime Drug Enforcement Task Forces
[hereinafter Ftead Shot).
FBt Meeting, supra note 7. See also FD-302 supra note 8.
FBI Meeting, supra note 7.
” Head Shot, supra note 12.
Transcribed inteiview of James Needles, at 30 (Nov. 4, 201 1) (going on to describe it as “very” frustrating)
[hereinafter Needles Tr.[.
" Transcribed Interview of William J. Hoover, at 3J (July 21, 20H) [hereinafter Hoover Tr.f
'* Transcribed Interview of Kenneth Meison, at 1 84-185 (July 4, 201 1) [hereinafter Meison Tr.|.
4
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II. Main Justice Should Have Known Key Investigative Details
The Department of Justice constantly references parallels between Fast and Furious and
Operation Wide Receiver, an earlier operation conducted during the previous administration.
Indeed, both were run out of ATF’s Phoenix Field Division, both involved cooperating gun
dealers, and thus both provided ATF with contemporaneous notice of gun purchases. In
addition, in both cases, the Justice Department’s Criminal Division — including Deputy Assistant
Attorney General Jason Weinstein and Assistant Attorney General Lanny Breuer — was in a
position to know the key investigative techniques employed. The Criminal Division briefed ATF
headquarters on gunwalking in Operation Wide Receiver, and the Criminal Division should have
known about the misguided tactics used in Operation Fast and Furious, outlined in documents
the Criminal Division approved. One reason Main Justice was involved in Fast and Furious was
new coordination between the Criminal Division and ATF. A second reason was the use of
federal wiretaps in the case. Both of these factors are explained in more detail below.
A. Coordination Between the Justice Department’s Criminal Division and ATF
In early September 2009, ATF and the Criminal Division began discussions “to talk
about ways CRM [Criminal Division] and ATF can coordinate on gun trafficking and gang-
related initiatives.”''’* Early on in these discussions, Lanny Breuer, Assistant Attorney General
for the Criminal Division, sent a Criminal Division prosecutor to Arizona to help the U.S.
Attorney’s Office there to prosecute ATF cases. The first case chosen for prosecution was
Operation Wide Receiver. E-mails produced by the Justice Department reveal that Breuer was
“VERY interested in the Arizona gun trafficking case, and he is traveling out [to Arizona]
around 9/21. Consequently, he asked us for a ‘briefing’ on that case before the 21®' rolls
around.”^" The next day, Breuer’s chief of staff “mentioned the ease again, so there is clearly
great attention/interest from the front office.”^'
When the Criminal Division prosecutor first arrived in Arizona, she gave a senior official
in the Criminal Division's Gang Unit her impressions of the case which Breuer was so intere-sted
in prosecuting:
I believe the ffl [sic][Federal Firearms Licensee] has a business but was
selling the guns to the targets from his house. There are tapes which 1 am
told have been translated. Case involves 300 to 500 guns (unclear to me
why we have such a wide range; doesn’t someone know' exact number?).
It is my understanding that a lot of these guns “walked”. Whether
some or all of that was intentional is not know. The ausa [sic] seemed to
think ATF screwed up by not having mechanism in place to seize weapons
once they crossed the border. In any event I believe a small number of the
E-mai! from Ja.son Weinstein to Lanny Breuer (Sept. 10, 2009) [HOGR 003378].
E-maii from James Trust) to Laura Gwinn (Sept. 2, 2009) [HOGR 003375].
E-mail from James Trusty to Laura Gwinn (Sept. 3, 2009) [HOGR 003376],
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107
guns have been recovered in connection with police action in mexico
[sic]7^
This exchange indicates that federal prosecutors in Arizona did not prosecute the case because
they disagreed with the misguided and unacceptable tactics used by ATF. This is consistent with
documents provided to the Committee. Former U.S. Attorney Paul Charlton received a memo
proposing controversial tactics during Operation Wide Receiver. Charlton has emphasized that
he never approved the tactics."^ Subsequently, the case was never prosecuted. Breuer’s order to
resurrect the case, however, signaled that the new leadership in the Department of Justice *ras
willing to prosecute the case despite the use of these reckless tactics. As head of the Phoenix
Field Division, SAC Newell saw this development - as with Operation Wide Receiver - as an
opportunity to make a name for himself by overseeing a big case.
Kevin Carwile, Chief of the Criminal Division’s Gang Unit, told Newell later in
September 2009 that:
I had one of my attys in Tucson last week reviewing the semi-dormant
ATF gun trafficking investigation being handled out of that office. After
our review, we have decided to take the case and the USAO has agreed.
Newell responded favorably to Carwile: “I was informed of this yesterday. I appreciate your
interest in the case and the assistance.”^^ With the support of the Criminal Division for
prosecuting cases that used gunwalking tactics like those in Wide Receiver, Newell began his
work on Operation Fast and Furious.
Discussions at the staff level over coordinating and prosecuting gun seizures in Mexico
continued between the Criminal Division and ATF. On December 3, 2009, the Acting ATF
Director reached out to FJreuer about this cooperation:
Lanny: We have decided to take a little different approach with regard to
seizures of multiple weapons in Mexico. Assuming the guns are traced,
instead of working each trace almost independenlly of the other traces
from the seizure, I want to coordinate and monitor the work on all of them
collectively as if the seizure was one case. . . We should meet again just to
catch up on where we are in our gun trafficking issues and we could talk
about the above idea as well. Let me know what you think.^*
With the awareness of the Office of the Deputy Attorney General, Breuer responded:
” E-mail from Laura Gvvinn to James Trusty (Sept. 3, 2009) (emphasis added) |HOGR 003377).
'' Michel Marizco, Lawyer Leaves Case of Slain Border Patrol Agent, Fronikras, Nov. 7, 201 1, available at
http://vvw'\v.fronterasdesk.org/news/20] I/nov./07/\vide-recetver-fast-lurious-gun-walking/.
E-mail from Kevin Carwile to William Newell (Sept. 30, 2009) [HOGR 003389).
’’ E-maii from William Newel! to Kevin Carwile (Sept. 30, 2009) ftlOGR 003389).
E-maii from Kenneth Meison to Lanny Breuer (Dec. 3, 2009) [HOGR 003403).
6
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We think this is a terrific idea and a great way to approach the
investigations of these seizures. Our Gang Unit will be assigning an
attorney to help you coordinate this effort.^’
The Criminal Division did assign an attorney, Joe Cooley, to assist with this effort. The case
chosen for this assistance was Operation Fast and Furious. In fact, this initiative was so
paramount to the Criminal Division that Cooley had to rearrange his holiday plans to attend an
important briefing on Fast and Furious.^*
For the next three months, until mid-March 2010, Joe Cooley was involved with Fast and
Furious, suggesting prosecutorial strategy to the lead federal prosecutor in Arizona, Emory
Hurley, and receiving briefings on operational details. Cooley, though, was not the only
Criminal Division attorney involved with Fast and Furious during this time period. The head of
the division, Lanny Breuer, was also drawn in through meetings with ATF officials.
The Criminal Division should have been far more alarmed about what it learned about
Fast and Furious and should have halted the program in its early stages, especially in light of the
gunvvalking in Wide Receiver. Two pivotal briefings at the beginning of 2010 revealed
concerning details about Fast and Furious. The first of these briefings occurred on January 5,
2010, after which Assistant Director for Field Operations Mark Chait fielded questions within
ATF on his plan for shutting down the program. Chait, however, failed to pay this audience
much heed, because he had a more important audience than ATF; he had just come to the
briefing from a meeting with Lanny Breuer where they focused on weapons seizures in Mexico -
seizures subsequently discussed in detail at the ATF meeting.
The second detailed briefing on Fast and Furious was held at ATF headquarters on March
5, 2010. Joe Cooley from the Criminal Division was in attendance. He had been working on
Fast and Furious for months, serving as a constant link between ATF in Phoenix and the
Criminal Division for Fast and Furious - a link that bypassed ATF leadership.
Two weeks later, in mid-March 2010, the Criminal Division pulled Joe Cooley off Fast
and Furious, Satisfied with how the U.S. Attorney’s Office was handling the prosecutor-led
OCDETF case, the Criminal Division believed the case was in good hands. Strangely, Main
.Justice ha.s consistently blamed the U.S. Attorney’s Office for mismanaging Fast and
Furious. The congressional investigation has shown, though, that at the time, Main Justice
was confident enough in the U.S. Attorney’s Office that it removed its assigned prosecutor
from the case.
E-mail from Lanny Breuer to Kenneth Melson (Dec. 4, 2009) [HOGR 003403J.
E-mail from Kevin Carwilc to Jason Weinstein (Mar. 16, 20)0) [HOGR 002832],
’’ .Meeting on “Weapons Seizures in Mexico vv/ Lanny Breuer” at Robert F. Kennedy Building. Room 2107. Jan, 5.
2010, 10:00 AM [HOGR 001987).
7
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B. Use of Federal Wiretaps
Around this same time, and continuing through the summer of 2010, the Criminal
Division remained involved in Fast and Furious through its authorization of seven federal
wiretaps. Federal wiretaps are rare in gun trafficking cases, and they are rare for ATF cases in
general. They require the approval of the Office of Enforcement Operations, which is part of the
Criminal Division. A Deputy Assistant Attorney General within the Criminal Division is the
official who typically reviews an Affidavit in Support of an Application for the Interception of
Wire Communication (Wiretap Affidavit), then signs an Authorization for Interception Order
Application (Wiretap Authorization) which allows the agency making the application to move
forward.
The Wiretap Affidavits are the documents which establish the need for the wiretap and
discuss why alternative investigative techniques are insufficient. Rich in detail, they provide a
mother lode of information. No one in ATF leadership admitted to reading the Wiretap
Affidavits. Similarly, political appointees at Main Justice denied reviewing the Wiretap
Affidavits, despite being responsible for reading them in order to approve the Wiretap
Authorization. Because of the Wiretap Affidavits, the Criminal Division at Main Justice was in
a position to know as much about Fast and Furious as ATF. Both Justice Department and ATF
leaders in Washington, D.C. claimed they were unaware of the gunwalking that occurred during
Fast and Furious, yet both could have and should have reviewed the Wiretap Affidavits. Senior
officials at Main Justice were aware of the tactics in Operation Wide Receiver and should have
prevented them from being repeated in Fast and Furious.
In both operations, key information flowed straight to the Criminal Division, As
previously discussed, the Criminal Division resurrected Wide Receiver in the fall of 2009 due to
Lanny Breuer’s keen interest in the case. The Criminal Division, and not ATF leadership, had
the full complement of facts about Wide Receiver, since it had assumed primary responsibility
for the case. Similarly, the Criminal Division possessed detailed information regarding Fast and
Furious since it approved the Wiretap Authorizations, The Criminal Division failed to connect
the cases and understand that the unacceptable tactics in Wide Receiver were being duplicated on
a much larger scale in Fast and Furious.
Criminal Division officials claim they were concerned about Operation Wide Receiver
and took action to inform ATF and prevent a repeat of these misguided tactics. Their actions at
the time, however, belie these claims. The Criminal Division held exactly one meeting with
ATF, in April 2010, to raise concerns about Wide Receiver. At the exact same time, the
Criminal Division was approving multiple Wiretap Authorizations in Fast and Furious based on
specific evidence in the Wiretap Affidavits indicating the continued use of these same misguided
tactics.™ Their failure to inform Department leadership or the Inspector General (IG) at the time
undermines the claims that they were conscientious and dutiful upon learning that ATF had
walked guns.
“ Sec 1 8 U.S.C. § 25 1 0 ef seq. (for wiretap application approval, requiring, "a full and complete statement as to
whether or not other investigative procedures have been tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous").
8
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III. Jason Weinstein Knew About Illegal Activity Yet Failed To Stop It
During his transcribed interview. Deputy Assistant Attorney General Jason Weinstein of
the Criminal Division testified that he first became concerned about Operation Wide Receiver
when he read a single word: “monitor.” In an attachment to a March 16, 2010, e-mail sent to
Weinstein, a description of Operation Wide Receiver contained the following sentence:
With the help of a cooperating FFL, the operation has monitored the sales
of over 450 weapons since 2006.^'
As Weinstein explained about Operation Wide Receiver;
The piece of that that caused the greatest concern was the possibility that
with the assistance of the cooperating FFL that they had actually
monitored, and I took that to possibly mean that they had recorded in real
time the sales of those guns. And so my question to Mr. Carwile is did
they actually - was the FFL cooperating and were they monitoring the
sales as they occurred, or did the sales happen and the FFL began
cooperating after the fact; because the answer to that question would
affect, at least potentially affect the analysis about whether they let guns
go that they had the legal authority to have stopped.
Messrs. Weinstein and Breuer have both expressed regret for failing to draw a connection
between Operation Wide Receiver and Operation Fast and Furious. The two cases used similar
investigative techniques, operated in the same ATF Field Division with the same Special Agent
in Charge, and both received considerable attention from the Criminal Division in the spring of
2010 .
Although a direct connection existed through a common suspect in the two
investigations, Weinstein failed to realize that the two investigations also involved the e.\act
same tactics. As Weinstein testified, “I believed Wide Receiver to be an aberration and to be a
case from years earlier."^^ Through the Wiretap Aflldavits, however, Weinstein had information
available to him indicating that guns were being walked in Fast and Furious. In fact, through
these Wiretap Affidavits Weinstein had much more information available about gunwalking used
in Fast and Furious than he ever did in Operation Wide Receiver. Further, this information was
available to Weinstein in May 2010, a month after he expressed major concerns with Wide
Receiver in April, and yet he still failed to recognize that the tactic was widely used in Fast and
Furious.
ATF had pole cameras inside the stores of cooperating gun dealers. These cameras
recorded, in real time, sales of weapons. Not only did ATF agents monitor these straw purchases
E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 2010) (emphasis added) (HOGR 003434-003435
Transcribed Interview of Jason Weinstein, at 95 (Jan. iO. 2012) [hereinafter Weinstein Tr.].
” Weinstein Tr. at 157.
9
Ill
as they happened electronically, but they also monitored them in person. A March 3, 201 1 CBS
News interview with ATF Special Agent John Dodson contained footage of ATF agents
watching known straw purchasers walk out of a gun store and load the weapons into their
vehicles.^''
Weinstein should have known from the Wiretap Affidavits that ATF agents were
witnessing, monitoring, and recording not only these straw purchases but also the subsequent
illegal transfer of the weapons. He also should have known from the Wiretap Affidavits that
these weapons were being recovered in Mexico, sometimes only one day after they were
purchased. Weinstein should have known from the Wiretap Affidavits who the straw purchasers
were, where they met, and where they stored the guns they bought before they were transported
to Mexico. Yet, he failed to raise the same concerns about Fast and Furious that he identified in
Wide Receiver,
Weinstein did not admit to being aware of all this information in his transcribed
interview. In his testimony, Weinstein attempted to explain why he failed to recognize any
problems in the Fast and Furious Wiretap Affidavits:
My general practice ... is to review the summary memo in the first
instance and to go to the affidavit only if there are issues or questions that
are not answered by the summary memo that I need to answer in order to
make a probable cause determination. So my practice in every ease, in
every wiretap 1 reviewed since I came on the job, is to review the
summary memo. And I can probably count on one hand the number of
times when there’s been something in the memo that was poorly written,
that left me confused about the meaning of a dirty call or a legal issue that
caused me to have to go to the affidavit.^^
Weinstein admitted that he “reviewed what [he] bclieve(dl to be three of the wiretaps in Fast and
Furious, in what [he] now knows to be Fast and Furious.” ^ He further explained that nothing in
them concerned him:
What 1 can say is that had 1 seen anything in what I reviewed in
connection with the wiretaps that gave me any reason to suspect that guns
were walking in that case in Fast and Furious, I would have reacted very
strongly to it. And you saw in the April 12th email, April 12, 2010 email,
how strongly 1 reacted to guns that had walked 3 years earlier. If I thought
that those guns were walking 3 weeks earlier or 3 days earlier or 3 hours
earlier -- that is, that it was still ongoing — my reaction would have been
even .stronger.”
” Agent: I was Ordered to Let U S. Gum into Mexico, CBSNEWS.COM, March 3, 20]\, available at
hitp://wvvw.cbsnews.com/slories/2()l ]/03/03/evcningnews/main2003903 1 .shtml.
Weinstein Tr. at 87.
Weinstein Tr. at 87.
^'Weinstein Tr. at 92*93.
10
112
During prior testimony before Congress, Breuer and Attorney General Eric Holder have both
gone to great lengths to explain that the Criminal Division reviews Wiretap Affidavits only for
legal sufficiency and not to evaluate the appropriateness of the tactics.^* It is now apparent why
Breuer and the Attorney General have emphasized this point. That distinction is essential in
order to avoid responsibility for knowing of the tactics described in the Wiretap Affidavits.
Congressional investigators have learned about the information contained in one Wiretap
Authorization and Wiretap Affidavit from Fast and Furious that Jason Weinstein signed. The
Wiretap Affidavit presented Weinstein with the details of at least tw'o instances in which ATF
agents had witnessed illegal straw purchasing and the subsequent transfer of the purchased
weapons to other individuals. Considering that a single word, “monitor,” had made Weinstein so
anxious in the description of Operation Wide Receiver, detailed eyewitness transactions in Fast
and Furious should have caused Weinstein to sound the alarm immediately. The Wiretap
Affidavit accompanying the Wiretap Authorization Weinstein signed described these two
situations and several others in great detail. Yet, the straw purchasing ring continued to operate
under the governmenf s nose for seven more months before indictments were finally handed
down, thereby severely jeopardizing the safety of the citizens of Arizona, the American public,
and the people of Mexico.
IV. Main Justice: Failing to Ask Questions
Through its investigation, Congress has learned that senior Department officials showed a
serious lack of inquisitiveness when it came to discovering details about Operation Fast and
Furious. They knew as early as April 2010 that ATF’s Phoenix Field Division - under the same
SAC, Bill Newell - had previously used this same tactic of gunwalking. Still, these officials
failed to ascertain the true scope of the program. Later, when whistleblowers came forward with
information and supporting documents, these same officials provided false information to
Congress and refused to get to the bottom of the matter.
Over the past year, Congress has exposed the dangers of Operation Fast and Furiou.s to
the public and has sought to bring accountability to the decision-makers responsible for its origin
and implementation. Fast and Furious represents a breach of trust that, to date, has led to the
tragic murder of Border Patrol Agent Brian Terry and the deaths of countless innocent Mexican
citizens. Despite these tragedies, the Justice Department has obstructed the Committee’s
investigation every step of the way.
On July 4, 2011, the former ATF Acting Director testified that the Justice Department
was managing the congressional investigation in order to protect the political appointees at the
Department.^’ This statement has proved prophetic, as the Department has blamed everyone
except for its political appointees for Fast and Furious. This includes the U.S. Attorney’s Office
in Arizona, the ATF Phoenix Field Division, and even ATF headquarters.
Test, of Assl Att’y Gen Lanny Breuer, Subcomm. on Crime and Terrorism, Senate Comm, on the Judiciary,
"Combating International Organized Crime: Evaluating Current Authorities, Tools and Resources” (Nov. 1. 201 1):
Test, of Ati'y Gen Eric Holder, Senate Judiciary Comm.. “Oversight of the U.S. Department of Justice,” (Nov. 8,
201 i).
^^' Transcribed Interview of Kenneth Meison, at 130 (July 4, 201 1) [hereinafter Meison Tr.].
il
113
For months, the Department has stonewalled Committee document requests and refused
to comply with Committee subpoenas. The Department has produced scores of blacked-out
pages containing no information and many duplicate documents in order to bolster its page
count. Recently, the IG’s office disclosed that it has reviewed approximately 80,000 pages of
documents related to Fast and Furious, and conducted approximately 70 interviews in its
investigation. That investigation is not even close to completion. In comparison, the
Department has produced just over 6,000 pages to Congress, representing only 8% of the
materials available to the IG. The Department is withholding 92% of the documents it has given
the IG, Also, Congress has conducted 22 Interviews - only 31% of the total the IG has already
conducted. If the Department granted Congress access to all the documents and witnesses
available to the IG, it would be much closer to determining who was actually responsible for Fast
and Furious.
The Department has set an arbitrary cut-off date of February 4, 2011, for the purpose of
withholding documents pertaining to Fast and Furious - even with respect to documents directly
responsive to the Committee’s subpoenas. The Department simply cites a “constitutional
privilege” of separation of powers as a basis for its decision, without providing any legal basis
for doing so. Despite the Committee’s emphasis on the importance of these documents to this
investigation, the Department has declared that will not provide the Committee with any
documents created after February 4, 201 i .
In transcribed interviews, the Department has also instructed its witnesses from
answering any questions that pertain to the post-February 4, 201 1 period. This is unacceptable.
The Department provided Congress undeniably false information in its February 4, 201 1 letter,
which it ultimately had to withdraw - an unprecedented action. It is therefore imperative to
investigate when and how the Department learned that information was false and why it refused
to acknowledge the information was false until nearly nine months later.
Ju.st last week the Department provided a document showing that Lanny Breuer was
advocating gunwalking on February 4, 201 1 This advocacy came the same day the
Department told Congress that it “makes every effort to interdict weapons that have been
purchased illegally and prevent their transportation to Mexico.’”" Breuer, who had forwarded a
draft copy of the Department’s letter to his private e-mail account the day before, suggested to
the Attorney General of Mexico that they allow straw purchasers to enter Mexico. His advocacy
of this new, sister plan to Fast and Furious demonstrates a critical lapse in Judgment. Breuer’s
failure here stands in stark contrast to his public pronouncements,
V. Justice Department Blaming Everyone Else
ATF witnesses pointed to a Department of Justice Cartel Strategy promulgated by the
Deputy Attorney General in late 2009 as the impetus for Fast and Furious. The strategy
encourages the utilization of OCDETF cases, and notes that:
E-mail from Anthony Garcia to Adam Lurie (Feb. 4, 201 1) [HOGR 005754],
Letter from Asst Alt’s Gen Ronald Weich to Senator Charles E. Grassley (Feb. 4, 2011).
12
114
[MJerely seizing firearms through interdiction will not slop firearms
trafficking to Mexico. We must identify, investigate, and eliminate the
sources of illegally trafficked firearms and the networks that transport
them.''^
The Assistant SAC of the ATF Phoenix Field Division pointed to this Justice Department
initiative as one of the reasons Fast and Furious came into being.*'^ ATF Deputy Director
William Hoover also used this strategy to create internal ATF guidelines “that, exactly, fit in
with the Department of Justice cartel strategy.”''^ The ATF Phoenix Field Division, using both
this Justice Department strategy and Breuer’s decision to pursue prosecutions in Operation Wide
Receiver, believed it had the support of Main Justice to launch Operation Fast and Furious,
A. Gary Grindler, former Acting Deputy Attorney Gencrat and current Chief of
Staff to the Attorney General
Gary Grindler was the Acting Deputy Attorney General during Fast and Furious from
February 4, 2010 until the end of 2010. Currently, he is Chief of Staff and Counselor to the
Attorney General. Grindler claims his staff was responsible for alerting him to any problems
during Fast and Furious. He testified he knew incredibly little about Fast and Furious, and is
aware of only scant details even to this day.
Grindler has made no attempt to find out what actually happened during Fast and
Furious, despite having been second-in-command in the Department during the pendency of the
operation, and in charge of the office with direct supervisory authority over ATF. Grindler said
that during a very detailed March 12, 2010 briefing on Fast and Furious he did not fully
appreciate the volume of guns that were being transported to Mexico under the program because
he was new to the job. Therefore, he was unable to make the necessary connections, ask the
proper questions, and follow up with ATF after the briefing or have his staff monitor the
program closely. If Grindler is to be believed, because he was new to the job, he let ATF operate
in an uncontrolled manner.
Grindler’s management style made it highly unlikely that he would ever discover any
wrongdoing. Grindler blames his staff:
A. The way I organized the office was I had two individuals on my
staff who had ATF as a component where they have responsibility.
These individuals had other responsibilities, but that was one of
their responsibilities. So from a management point of view, they
had the responsibility to know more than I knew about ATF, and if
there were issues that they believed needed to be brought to my
attention, then I expected them fo bring it to my attention.
"■ E-mail from [DOJ] on behalfof David Ogden to Kathryn Ruemmler, et al. (Oct. 26, 2009).
Transcribed Interview of George Giilelt. at 1 1-12 (May 17, 201 i).
" Transcribed Interview of Wiliiam Hoover, at 139 (July 21, 2011).
Transcribed Interview of Gary Grindler. at 15 (Dec. 14, 2011) [hereinalter Grindler Tr.].
13
115
Beyond that, ATF being a law enforcement component works with
the United States Attorneys across the country, and if there are
issues either way with those relationships, it would be my
expectation that either the United States Attorneys would either
directly or through the executive office of U.S. Attorneys bring
issues to my attention that they thought warranted my attention,
and if ATF similarly had issues with United States Attorneys, I
would expect it to bring it to my attention. And obviously the head
of ATF had a responsibility to bring Issues to my attention.
Q. And who were your — 1 guess they were associate deputies that had
the ATF portfolio?
A. One.
Q. Mr. Siskel was one?
A. Mr. Siskel was an Associate Deputy Attorney and he had ATF as a
portfolio."'’
Ed Siskel now works in the White House Counsel's Office.
Grindler also failed to reach out proactively to Siskel to head off any problems.
Q. And did you have regular meetings with Messrs. Siskel and
Michalic about ATF, or did you learn about ATF, manage ATF,
only on an as-needed basis?
A. I don’t recall a specific meeting with them solely about ATF. 1
said to my staff if there is an issue 1 really need to know, they need
to come in and tell me."’
Grindler delegated responsibility to his subordinates and relied on them to bring any
problems to his attention. Despite the disastrous results, he found no fault with this passive
approach:
Q. What other types of management decisions have been made at the
Department to make sure a case like this will never happen in the
future?
A. 1 don’t know whether there are other management decisions, 1
think to the e.xtent that information comes in regarding this matter
* Grindler Tr. at 1 0 {cmpha.sis added).
Grindler t r. at 11.
14
116
and to the extent that it gives us a basis to do - where we think we
need to take a management decision. When I say we, again, I am
not the decision-maker, but I believe that that is and will be an
ongoing process to review that, consider that, in the context of
management,*'*
The current Acting Director of ATF, a direct appointee by Attorney General Holder, however,
disagrees with Grindler’s management approach:
Anybody, including Mr. Melson, who waits for things to happen or waits
for information to come to them, that is something 1 personally am not a
believer in. I’m a believer in management by walking around. If you’re
not hearing it, you seek it out. And there are a lot of ways to do that
other than sitting in your corner office waiting for memos to come
in.*”
Grindler frequently deflected all responsibility for learning the gunwalking tactics that ATF
used;
Q. Did you assign Mr, Siskel to keep track of this case on a going
forward basis?
A. 1 don’t recall. Again, ATF is his responsibility.
Q, Do you recall any specific conversations with Mr. Siskel about the
Fast and Furious case outside of this meeting and the other ATF
monthly meetings?
A. No.“
To this day, Grindler maintains knowing little about Fast and Furious:
Q. So it is your position that ATF didn’t let these guns walk?
A. 1 don’t know all the details of the facts. I believe that there were
serious flaws in their operational tactics. But it is a fairly high
level understanding that it included dropping of surveillance,
maybe not interdicting guns where they had a legal basis to
interdict. Exactly how many of the guns fall into those categories
and how many don’t, I don’t know. I just don’t know.
* Grindler Tr. at 25-26.
" Richard Serrano. /Ing/y Former A TF Chief Blames Subordinates for Fast and Furious, LA TIMES. Dec. 24. 20 1 1
available at http://articles.iatimcs.coin/201 l/dec/24./nation/la-na-fast-l'urious-201 11225 (emphasis added).
“/rf. at 17-18,
" Id at 23-24.
15
117
Grindler appeared for a transcribed interview in December 201 1 - almost a full year
after the scandal broke, and a year after he was informed, in detail, about Fast and Furious
and the connection to Brian Terry’s death. Amazingly, during the past year he failed to learn
anything about the case and failed to re-examine the case in any meaningful way:
Q. So you haven’t done any retrospective work, given the fact that
you were the Deputy at the time and now you are one of the
principal advisers for the Attorney General?
A. I don’t know what you mean by retrospective work.
Q. Well, what the heck happened, and how can we make sure, since
you were the Deputy at the time when the Fa.st and Furious case
unfolded, really bad things happened, what can we learn from that
to make sure it doesn't happen again?
A. 1 believe that the Deputy Attorney General’s office is engaged
in - has been engaged in considering what steps need to be made
and there has been consultation with the Attorney General. It has
been taken very seriously.
For nearly a year, Grindler held the number two position at the Department of Justice, Yet after
all this time, he pleads ignorance on a number of critical issues:
Q. Fast and Furious was described by ATF during the pendency of the investigation
as a complex firearms trafficking network. We now know it wasn’t that complex.
There were - there’s 1 9 indicted straw purchasers. We’re told there’s 40 more
coming. But they all were reporting into Acosta, and Acosta was working with
two - one or two unnamed persons. Those two unnamed persons were working
with the Sinaloa cartel. Is that your understanding of the network now?
A. I don’t have a detailed understanding now of the network.
* ♦ ♦
Q. Which presents the difficult question. ATF had this, what was described as a
promising firearms trafficking case so they can better understand the network and
find out who it was, the link to the Sinaloa cartel. And once they find out that
link, turns out they are working with the FBI and can’t be prosecuted. Is that
troubling to you?
A. I just don’t know what the facts are so it’s impossible for me to respond. I know
that’s one of the inquiries that the committee has, and 1 know that people at the
Grindler Tr. at 26-28.
16
118
Department are trying — either have or are trying to get the details of that. But I
just don’t know what they are.
Q. Is that a problem? Does that trouble you?
A. I really would have to sit here and go through the specific facts to understand
them. There are a lot of moving parts here, I just don’t feel comfortable
opining on it.^^
B. Jason Weinstein, Deputy Assistant Attorney General
Even after learning about gunwalking in Wide Receiver, Jason Weinstein failed to ask
key questions about Fast and Furious. Yet, Weinstein volunteered to help write the February 4,
2011, letter to Senator Grassley that denied the initial gunwalking allegations. Fie offered to help
even though the Criminal Division has no supervisory authority over ATF and even though he
claimed not to know about the tactics used in Fast and Furious, Though the Criminal Division
had a prosecutor assigned to Fast and Furious, Weinstein deflected any accountability by
blaming ATF and the U,S. Attorney’s Office in Arizona for the false information contained in
the letter:
Because of the repeated assurances I and others received in February,
2011, from the then current leadership of the U,S. Attorney’s Office in
ATF that guns had not walked in Fast and Furious and from ATF that it
was making every effort to interdict guns, I did not make any connection
between Wide Receiver and Fast and Furious. For that reason, I simply
was not thinking about Wide Receiver as 1 assisted with the February 4th
letter which 1 understood to be about Fast and Furious,
The February 4, 20 1 1 letter states that “ATF makes every effort to interdict weapons that
have been purchased illegally. . , Weinstein knew at that time that ATF in fact did not make
every effort to interdict weapons purchased illegally. Me knew about gunwalking tactics in Wide
Receiver, and he should have been aware of the details in the Fast and Furious Wiretap
Affidavits. Weinstein had access to a great deal of information, but rather than looking
internally for answers, he chose instead to go outside his chain of command and accept the
representation of the head of the U.S, Attorney’s office in Arizona - an individual who was
complicit in the failure of the program:
Given what I know now, of course, I wish I had not placed such faith in
the assurances provided to me by the leadership of the U.S. Attorney’s
Office and ATF. But given what I knew then and given the strength of
those assurances 1 believed at the time that it was entirely appropriate to
do so, 1 trusted what was said to me and 1 firmly believed at that time that
W. at 1 10-1 1 i (emphasis added).
’’ Weinstein Tr. al 12.
’’ Letter trom Ronald Welch to Senator Charles Grassley (Feb. 4, 20i 1).
17
119
in fact ATF had not let guns walk in Fast and Furious. Obviously, time
has revealed the statements made to me and others to be inaccurate, and
that is beyond disappointing to me.^*
Weinstein went on to hold federal officials in Arizona responsible:
And it is important to note that I relied on inaccurate information from the
U.S. Attorney’s Office and ATF not only in assisting with the
February 4th letter but also in my subsequent communications with my
own chain of command, Just as 1 would never have intentionally
participated in providing inaccurate information to Congress, 1 certainly
would never have intentionally provided inaccurate information to my
own chain of command,”
Weinstein clearly identified the sources of the so-called bad information he received:
A. Now, as it turns out, weeks later when 1 did receive information
directly from the people you are talking about, people working
with Mr. Burke, I got the same bad information.
Q. And that was Mr. Hurley and those folks?
A. It was Mr. Hurley and his criminal chief
Q. Mr. Cunningham.
A. Mr. Cunningham.’*
Weinstein further testified that he was very upset upon learning about gunwalking in Wide
Receiver:
If you look at the April 12th email, you will get that my reaction was I
stunned about the tactics. And one of the reasons 1 was stunned was
because in my career as pro.secutor we had ~ 1 had always gone to great
lengths and taught people to go to great lengths to avoid letting even a
single operable firearm to get out of law enforcement’s control. So that’s
the depth of my concern about it, and that’s the way i communicated it to
the folks from ATF at that meeting. I communicated as clearly as I could
that those tactics were inappropriate, albeit under different ATF
management and 3 years earlier, they were nevertheless inappropriate.”
Wein-Stein Tr. at 12.
Weinstein Tr. at 13-14.
'* Id at 48.
at 20-21.
18
120
Yet, he never put these serious misgivings in writing. Indeed, not a single e-mail produced by
the Justice Department to Congress corroborates his professed outrage. Instead, the
congressional inquiry has found only one instance in which he communicated his disapproval - a
single meeting with ATF Assi.stant Director Hoover, after which he considered the matter closed:
Q. So there is not a single email that shows — in other words, there is
no written record that shows that you were upset over these
tactics?
A. No, there’s just the meeting itself that I had in which I
communicated it face to face.
Q. So there is a single meeting you had?
A, It was a single hour-long meeting in which I communicated my
concerns about the tactics.™
Weinstein placed blame for Fast and Furious on ATF’s Phoenix Field Division -
specifically SAC William Newell:
A. I will say that I have significant concerns based on w'hat 1 know
now about the management, about what appeared to me to be some
management issues in the Phoenix field office of ATF. . . .
Q. What about approving the so-called misguided tactics? I mean,
isn’t that on the SAC as well?
A. Well, again, 1 don’t know what he did, what he didn’t do. I don’t
know if the facts of that have come out yet or will come out. But,
ultimately, he is at the top of the management chain in an office,
and to the extent that tactics were being used in that office that
shouldn’t have been used - it is my view that it is not a terribly
large office, but there are a number of levels of supervision
between him and the line agent. But at the end of the day the SAC
is responsible for what goes on in his office.*'
Weinstein refuses to accept any responsibility for Fast and Furious. Despite the fact that
he was in a unique position to stop the program because of the Intercept Order Applications he
approved, he deflects all blame for not stopping it to ATF and the U.S. Attorney’s Office, He
admitted that “gun-walking is a pretty extraordinary thing and it’s an extraordinarily bad
“ Id. at 19-20.
Id. at 29.
19
121
tactic.”^^ Weinstein’s unique knowledge of both Wide Receiver and Fast and Furious put him in
a position to sound the alarm, yet he did nothing.
C. Dennis Burke, former U.S. Attorney for the District of Arizona
In late October, Attorney General Eric Holder followed up on a communication from
Senator Grassley about whistleblower retaliation by implying that that the Justice Department
had held someone accountable for the leak of a document about one of the whistleblowers in Fast
and Furious. However, that person turned out to be former U.S. Attorney for the District of
Arizona Dennis Burke — who had already resigned of his own accord on August 30, 201 1
Burke’s lawyers publicly admitted on November 8, 201 1 that he had had a role in leaking the
document.
In a subsequent second interview with congressional investigators, Burke claimed he had
been contacted by a reporter in Washington, D.C, who was apparently already familiar with the
contents of the document and asked him for a copy of it.*"* When asked how he provided the
document to the reporter, Burke he had a personal friend hand-deliver the document to the
reporter instead of e-mailing it to him.*^ Questioned about why, Burke appeared unwilling to
acknowledge that it signaled any consciousness of guilt:
Q, So that you wouldn’t — I don’t understand. Why wouldn’t you just
email it to him? That would be the simplest, easiest thing to do.
A. That would be the simplest, easie,st way.
Q. Yeah.
A. And that’s when I said, “1 can mail it to you,” as opposed to it
being forwarded around the [reporter’s] office, I guess.
Q. So which one of you suggested that it not be emailed?
A. I think I did, but I can’t remember the conversation.
Q. So why did you just suggest that?
A. Because he was - he had initially said something about, “You can
email it to me or have it sent to me,” and I took the option of
having it sent to him. And then he said, “I don’t have an address.”
So 1 took the option of delivering it to him.
’ Mindy Blake, U.S. Attorney for Arizona resigns, KOLD.-'KSMB (Aug. 30, 2011), available at
http://ww'\v,tucsonnewsnovv.com/.storyyi5359994/us-aUomey-for-az-resigns.
“ Mindy Blake, U.S. Allorney for Arizona resigns, KOLD/KS.MB (Aug, 30, 2011), available at
htlp:/.^ww\v.tucsonnewsnovv.com/story/15359994./us-anorney-for-az-resigns.
Transcribed Interview of Dennis Burke, at 191-192 (Dec. 13, 20! 1) [hereinartcr Burke Tr.].
Burke Tr. at 192-193.
20
122
Q. So why did you prefer not to email it directly to him?
A. Probably so it wouldn’t be on the system there,
Q. And why? But why? Why did you not want it on the system there?
A. Just for circulation purposes.
Q. What does that mean?
A. What does it mean?
Q. Yeah, what do you mean, “for circulation’’ — 1 don’t know what
that means, “for circulation purposes.”
A. So that he had just a hard copy of the memo as opposed to an email
version.
Q. To prevent him from forwarding it as easily, is that what you
mean?
A. I guess. Yeah, yeah.
Q. Did you have an arrangement with him that he agreed not to
forward it?
A. No.^^
When asked directly about his motives. Burke denied that it was retaliation for the
whist lebiowing.'’^
Q. So what was your motivation?
A. That [the reporter] had asked for it, and I figured it was going to be
going out anyway, and I would give him a time advantage in
getting it.
Q. Are you aware now that it was actually not provided to the Hill?
A. I was told later, yeah.*’*
“Burke Tr. at 192-195.
Burke Tr. at 198.
“ Burke Tr. at 198-199.
21
123
The seriousness of a U.S, attorney seeking to undermine a whistleblower was further
underscored by the seriousness of why he had the document in the first place. Burke testified
that he became aware of the document only because the Justice Department had provided it to
him.*’’ He also testified that the Department was providing such documents to other individuals
in the Arizona U.S. Attorney’s office under investigation, Patrick Cunningham and Mike
Morrissey.™ Although this was ostensibly for review of the documents, Burke testified that the
Department never asked him anything about the documents it was providing to him.’' The
Justice Department has yet to provide a reasonable explanation as to why it was providing
documents to the very individuals who are under investigation by Congress.
Until July 2011, the Department also maintained a shared drive with key documents that
various ATF leadership under investigation had access to.’^ The Department’s actions made it
less likely that congressional investigators would be able to receive untainted testimony from the
leadership of ATF and the Department being investigated, since individuals could consult the
shared drive to figure out what Congress already knew from the documents produced under
subpoena — and thus what they would have to admit in their congressional testimony.
VI. Conclusion
ATF blames Main Justice for encouraging Fast and Furious. The Justice Department
blames ATF and the Arizona U.S. Attorney's Office for the use of misguided tactics. Those who
were in a position at Main Justice to slop the program blame their staffs for not bringing issues
regarding Fast and Furious to their attention. U.S. Attorney’s Office personnel have either taken
the Fifth Amendment and refused to di,scuss the issue with Congress, or have been estopped by
the Justice Department from talking to Congress altogether. As the former ATF Acting Director
testified in July 201 i, it appears very clearly that the Department is circling the wagons to
protect its political appointees.
The family of Brian Terry, the families of countless citizens in Mexico slain by weapons
purchased through Fast and Furious, and the American people deserve to know the truth. The
Justice Department’s failure to be forthcoming and cooperate with the Committee’s investigation
is unacceptable. The Justice Department’s failure to fully comply with congressional subpoenas
only prolongs the inquiry and damages the public’s trust in the Department’s leadership.
“Burke Tr. at 195-196, 200.
™ Burke Tr. at 196.
” Burke Tr. at 200.
’■ Letter from Department of Justice to Chairman Issa and Ranking Member Grassley, Sep. 19. 201 1. at 2.
22
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Chairman ISSA. I will now recognize myself for 5 minutes — oh,
I am sorry. I am a little off on that. To he honest, I just thought
I would respond to a few of your things, but that will wait.
Mr. Attorney General, we are pleased to have you here. As the
highest-ranking law official in the land, we appreciate your com-
mitment to the time, both here and in the Senate, that you have
given.
Contrary to the ranking member, I believe that today will be one
of the first times in which you are fully briefed and prepared to an-
swer in detail questions exclusively about Fast and Furious; and I
would caution both sides of the aisle to stick to the subject. We are
not — and I repeat — we are not the Judiciary Committee. The Attor-
ney General is not here to answer a plethora of questions we may
have about the conduct of his office. He is not here to generally tell
us about law enforcement. I will assert the gavel if someone goes
on a broad expedition beyond Fast and Furious and, as the ranking
member said, related activities, including Wide Receiver and oth-
ers. I think respect for the Attorney General’s time and the legiti-
mate portion of the jurisdiction that our committee has taken re-
quires that I ask all of you to please stick to that, particularly since
the Attorney General’s time is valuable.
Mr. Attorney General, pursuant to the rules of the committee, I
would ask that you rise and take the oath.
[Witness sworn.]
Chairman IssA. Let the record represent an affirmative answer.
Thank you, Mr. Attorney General.
In order to allow time for discussion, the committee, like all com-
mittees, will tell you to stay within 5 minutes. I in fact have no
intention on picking up the gavel as long as you present what you
have here today.
I would ask that to the greatest extent possible that you realize
that your opening statement in its written form is completely in
the record and that you certainly have our permission to include
material not in the record in order to further delineate your pre-
pared testimony today.
With that, Mr. Attorney General, you are recognized.
STATEMENT OF ERIC H. HOLDER, JR., ATTORNEY GENERAL
OF THE UNITED STATES
Attorney General Holder. Thank you.
I am here today because I understand and appreciate the impor-
tance of congressional oversight and because I am committed to en-
suring the highest standards of integrity and professionalism at the
U.S. Department of Justice. That is precisely what I pledged to do
exactly 3 years ago tomorrow when I was sworn in as Attorney
General, and it is exactly what I have done over the last 3 years.
My dedication to the Department’s mission is shared by an ex-
traordinary group of colleagues, over 117,000 employees, who each
day in offices all around the world work tirelessly to protect the
American people from a range of urgent and unprecedented
threats — from global terrorism and financial fraud, violent crime,
human trafficking, civil rights abuses, and more.
Over the last 3 years, we have made a number of significant im-
provements, including policy and personnel changes that address
125
many of the concerns that are the subject of this hearing today.
Today, I would like to discuss some of these improvements in spe-
cific terms and outline the steps that we have taken to ensure that
the flawed tactics in Operation Fast and Furious and in earlier op-
erations under the prior administration are never used again.
Now, in some of my comments today, if they sound familiar, it
is because this marks the sixth time that I have answered ques-
tions about this operation before a congressional committee in the
last year. Let me start, however, with something that cannot be
said enough: Allowing guns to “walk”, whether in this administra-
tion or the prior one, is wholly unacceptable. I have been consistent
on this. I have said this from day one. The tactic of not interdicting
weapons, despite having the ability and legal authority to do so,
appears to have been adopted in a misguided effort to stem the
alarming number of illegal firearms that are trafficked each year
from the United States to Mexico. Now, to be sure, stopping this
dangerous flow of weapons is a laudable and critical goal, but at-
tempting to achieve it by using such inappropriate tactics is nei-
ther acceptable nor excusable.
That is why, when I learned early last year about the allegations
raised by ATF agents involved with Fast and Furious, I took ac-
tion. In addition to requesting an Inspector General investigation
last February, I ordered that a directive be sent prohibiting the use
of such tactics. There have also been important personnel changes
in the Department, and vital reforms reflecting the lessons that we
have learned from Operation Fast and Furious have been imple-
mented.
Today, I want to reaffirm my commitment to ensuring that these
flawed tactics are never used again, and I reiterate my willingness
to work with Congress generally and with this committee more spe-
cifically to address the public safety and national security crisis
along our Southwest border that has taken far too many lives.
Congress has legitimately sought answers to questions about law
enforcement Operations Wide Receiver and Fast and Furious, and
my colleagues and at the Department of Justice have worked dili-
gently to provide those answers. In addition to my frequent testi-
mony before Congress, I have answered and am continuing to an-
swer questions that have been submitted for the record during pre-
vious hearings. The Department has also responded to more than
three dozen letters from Members of Congress and facilitated nu-
merous witness interviews. We have also submitted or made avail-
able for review some 6,400 pages of documents to congressional in-
vestigators. This has been a significant undertaking for Justice De-
partment employees, and our efforts in this regard remain ongoing.
We have also provided Congress with virtually unprecedented ac-
cess to internal deliberative documents to show how inaccurate in-
formation was initially conveyed in a letter sent to Senator Grass-
ley on February 4, 2011. These documents show that Department
officials relied on information provided by supervisors from the rel-
evant components in the best position to know the facts. We now
know that some of the information that they provided was, in fact,
inaccurate. We also understand that in subsequent interviews with
congressional investigators these supervisors stated that they did
126
not know at the time that the information that they provided was
inaccurate.
In producing internal communications regarding the drafting of
the February 4th letter, the Department made a rare, limited ex-
ception to longstanding executive branch policy. This decision re-
flected unusual circumstances and allowed us to respond, in the
most comprehensive way possible, to congressional concerns where
the Department itself concluded that information in the letter was
inaccurate. The documents we produced have answered the ques-
tion of how that letter came to be drafted and put to rest questions
of any intentional effort to mislead. All of our communications to
Congress should be accurate, and that is the standard that I expect
the Department to meet. At my direction, the Deputy Attorney
General has instituted new procedures to increase safeguards in
this area.
As I testified in a previous hearing, the Department does not in-
tend to produce additional deliberative materials — I want to em-
phasize deliberative materials — about the response to congressional
oversight or media requests that post-date the commencement of
congressional review. This decision is consistent with the long-
standing approach taken by the Department, under both Demo-
cratic and Republican administrations, and reflects concerns for the
constitutionally protected separation of powers.
Prior administrations have recognized that robust internal com-
munications would be chilled and the executive branch’s ability to
respond to oversight requests thereby impeded if our internal com-
munications concerning our responses to congressional oversight
were disclosed to Congress. For both branches, this would be an
undesirable outcome. The appropriate functioning of the separation
of powers requires that executive branch officials have the ability
to communicate confidentially as they discuss how to respond to in-
quiries from Congress.
Now, I want to note that the separation of powers concerns are
particularly acute here, because the committee has sought informa-
tion about open criminal investigations and prosecutions. This has
required Department officials to confer on how to accommodate
congressional oversight interests while also ensuring that critical
ongoing law enforcement decisionmaking is never compromised and
is free from even the appearance of political influence. Such candid
internal deliberations are necessary to preserve the independence,
the integrity, and the effectiveness of the Department’s law en-
forcement activities and would be chilled by disclosure of such ma-
terials. Just as we have worked to accommodate the committee’s le-
gitimate oversight needs, I trust that the committee will equally
recognize the executive branch’s constitutional interests and will
work with us to avoid further conflict on this matter.
I know the committee is also keenly interested in the policy
changes that the Department has undertaken in the wake of Oper-
ation Fast and Furious. The ATF, which is now under the leader-
ship of Acting Director Todd Jones, has implemented a number of
key reforms and critical oversight procedures to prevent such a
flawed operation from occurring again. These reforms are numer-
ous and include a number of things.
127
I am also pleased to report that, under the leadership of the De-
partment’s Criminal Division, we have bolstered crime-fighting ca-
pacity on both sides of the U.S. -Mexico border; and we have done
this by doing a number of important things as well.
This is an important start, but we have to do a lot more. And
no one knows this better than the members of our Nation’s law en-
forcement community, including — and I want to emphasize this —
including the ATF agents who testified before this committee last
summer. Not only did these brave agents bring the inappropriate
and misguided tactics of Operation Fast and Furious to light, they
also sounded the alarm for more effective laws to combat gun traf-
ficking and to improve public safety.
These courageous agents explained that ATF’s ability to stem the
flow of guns from the United States into Mexico suffers from a lack
of effective enforcement tools. Unfortunately, in 2011, a majority of
House Members, including all the members of the majority on this
committee, voted to keep law enforcement in the dark when indi-
viduals purchase multiple semiautomatic rifles, shotguns, and long
guns — like AK-47s — in gun shops along our Southwest border
states.
In this new year, I hope that we can work together to provide
law enforcement agents with the tools that they say they des-
perately need and that they have requested to protect our citizens
and to ensure their own safety. Indeed, incidents of violence
against law enforcement officers are approaching the highest level
that we have seen in nearly two decades, even though violent crime
is down overall.
That is simply unacceptable, and the Justice Department is com-
mitted to turning back this rising tide and to protecting those who
serve on the front lines. We have designed and implemented a com-
prehensive new training initiative to provide law enforcement lead-
ers with the information, analysis, and tools they need to respond
to a range of threats.
Let me be clear: Nothing is more important than ensuring the
safety of the brave law enforcement professionals who put their
lives at risk for us each and every day, but we can’t make the
progress we need and that the law enforcement partners deserve
without your assistance and without your leadership.
As I said before, I am determined to ensure that our shared con-
cerns about these flawed law enforcement operations lead to more
than worn-out Washington “gotcha” games and cynical finger point-
ing. The Department of Justice stands ready to work with you not
only to correct the mistakes of the past but also to strengthen our
law enforcement capacity in the future.
Thank you.
Chairman ISSA. I thank the gentleman.
[The prepared statement of Attorney General Holder follows:]
128
Statement of
Eric H. Holder, Jr.
Attorney General
United States Department of Justice
Before the
Committee on Oversight and Government Reform
United States House of Representatives
February 2, 2012
Chairman Issa. Ranking Member Cummings, and members ol'lhe Committee, i am here
today because I understand and appreciate the importance of congressional oversight, and
because 1 am committed to en.suring the highest standards of integrity and professionalism at the
Department olbfuslice. That's precisely what I pledged to do - exactly three years ago tomorrow
- when I was sworn in as .AUorney General. And it is c.xactly what I have done.
My dedication to the Department's mission is shared by an extraordinary group of
colleagues: the ! 1 7.000 eniplor ccs who - each day. in oflices all around the world - work
tirelessly to protect the American people from a range oi' urgent and unprecedented threnls
from global terrorism tind violent crime, to linancial fraud, human trafficking, civil rights abuses,
and more. Over the Iasi three years, we've made a number of signilicant improvements,
including policy and personnel changes that address many of the concerns that are the subject ol'
this hearing. Today. I'd like lo discuss some of these improvements in specific terms - and
outline Ihe steps that we have taken to ensure that the flawed tactics used in Operation Fast and
I 'urious - and in earlier operation.s under llte prior Administration - are never again used.
If some of my comments today .sound familiar, it is because this marks the sixth time I
have answered questions aboul this operation before a congressiontil committee in the last year.
Let me start, however, with something that cannot be said often enough: allowing guns to “walk'’
- whether in this Administration or in the prior one - is wholly unacceptable. This tactic of not
interdicting weapons, despite having the ability and legal authority to do so, appears to have been
adopted in a misguided effort to stem the alarming number of illegal firearms that are trafficked
each year from the United States to Mexico. To be sure, stopping this dangerous flow of
weapons is a laudable - and critical - goal. But attempting to achieve it by using such
inappropriate tactics is neither acceptable nor excusable.
That's why, when 1 learned early last year about the allegations raised by .A IT agents
iiivoh ed with fast and Furious. I look action. In addition to requesting an Inspector General
investigation last February. 1 ordered that adirective be sent prohibiting the use of such tactics.
I herc also have been important personnel changes in the Department. And vital reforms
rctlecling the lessons we have learned from Operation Fast and Furious have been implemented.
Today, 1 reaffirm my commitment to ensuring that these flawed tactics are never used
again. And I reiterate my willingness to work with Congress to address the public safety and
national security crisis along our southwest border that has taken far too many lives.
1
129
Congress has sought answers to questions about law enforcement Operations Wide
Receiver and Fast and Furious. And my colleagues and 1 at the Department of Justice have
worked diligently to provide those answers. In addition to my frequent testimony before
C'ongress, I have answered - and am continuing to answer - questions that have been submitted
for the record during previous hearings. The Department also has responded to more than three
dozen letters from members of Congress and facilitated numerous witness interviews. We also
have submitted or made available for review more than 6,400 pages of documents to
congressional investigators, fhis has been a significant undertaking for Department cmplo)'ccs -
and our efforts in this regard remain ongoing.
We also have provided Congress with virtually unprecedented access to internal
deliberative documents to show how inaccurate information was inilialiy conveyed in a letter
sent to .Senator Cirassley on February 4. 201 1 , These documents show that Department officials
relied on information provided by supervisors from the relevant components in the best position
to know the facts. We now know that some of the information they provided was inaccurate.
We also understand that, in subsequent interviews with congressional investigators, these
supervisors have stated that they did not know at the time that the information they provided was
inaccurate.
In producing internal conmumicalions regarding the drafting of the February 4"’ letter, the
Department made a rare, limited exception to longstanding Hxecutive Branch policy. This
decision rellected unusual circumstances and allowed us to respond, in the most comprehensive
way possible, to congressional concerns where the Department itself concluded that information
in the letter was inaccurate. Ilte documents we produced have answered the question of how
that letter came to he drafted and put to rest questions about any intentional effort to mislead.
All of our communications to Congress should be accurate and that is the standard I expect the
Department to meet. At my direction, the [Deputy Attorney General has instituted new
procedures to increase safeguards in this area.
As I testified in a previous hearing, the Department does not intend to produce additional
deliberative materials about the response to congressional oversight or media requests that post-
date the commencement of congressional review, 'fhis decision is consistent vvith the
longstanding approach taken by the Department, under both Democratic and Republican
administrations, and reflects concerns for the constitutionally-protected separation of powers.
Prior administrations have recognized that robust internal communications would be
chilled, and the Executive Branch’s ability to respond to oversight requests thereby impeded, if
our internal communications concerning our responses to congressional oversight were disclosed
to Congress. For both Branches, this would be an undesirable outcome. The appropriate
functioning of the separation of powers requires that Executive Branch officials have the ability
to communicate confidentially as they discuss how to respond to inquiries from Congress.
I want to note that the separation of powers concerns are particularly acute here, because
the Committee has sought information about open criminal investigations and prosecutions. This
has required Department officials to confer about how to accommodate congressional oversight
interests while also ensuring that critical ongoing law enforcement decision-making is not
compromised, and is free from even the appearance of political influence. Such candid internal
deliberations are necessary to preserve the independence, integrity, and effectiveness of the
Department’s law enforcement activities and would be chilled by disclosure to Congress of such
2
130
materials. Just as we have worked to accommodate the Committee’s legitimate oversight needs,
1 trust that the Committee will equally recognize the Executive Branch’s constitutional interests
and will work with us to avoid further conflict on this matter.
I know the Committee also is keenly interested in policy changes that the Department has
undertaken in the wake of Operation Fast and Furious. The ATF. which is now under the
leadership of Acting Director Todd Jones, has implemented a number of key reforms and critical
oversight procedures to prevent such a flawed operation from occurring again. These reforms
include: claril'y ing current firearms transfer policies to more effectively prevent tlie criminal
acquisition, trafficking, or misuse of firearms; implementing a new Monitored Case Program
designed to facilitate closer coordination on sensitive investigations between ATF field and
headquarters personnel; revising policies regarding the use of confidential informants to, among
other things, prevent using I'edcral Firearms Licensees as paid informants except in limited
circumstances; and reinforcing the importance of deconfliction and information sharing so law
enforcement agencies can investigate subjects more elTectively.
I'm also pleased to report that, under the leadership olTlie Department's Criminal
Division, wc'vc bolstered crime-fighting capacity on both sides of the U.S. /.Mexico border.
We've done this by creating new cartel -targeting prosecutorial units; developing new procedures
for using evidence gathered in Mexico to pro.secute gun traffickers in U.S. courts: training
thousands of Mexican prosecutors and investigators; extraditing more than 300 defendants
wanted by Li.S. law enforcement: successfully advocating for enhanced sentencing guidelines for
convicted traffickers and straw purchasers; and pursuing coordinated, multi-district
investigations of gun-trafficking rings.
1 his is an important start, but we have more to do. And no one knows this better than the
members of our nation's law enforcement community - including the ATF agents who testified
before this Committee last summer. Not only did these agents bring the inappropriate and
misguided tactics of Operation Fast and Furious to light, they also sounded the alarm for more
effective laws to combat gtin trafficking and improve public safety.
These agents explained that A IT's ability to stem flic flow of gun.s fi'om the United States
into Mexico suffers from a lack of effective enforcement tools. Unfortunately, in 2011, a
majority of House Members - including all members of the majority on this Committee - voted
to keep law' enforoement in the dark when individuals purchase multiple semi-automatic rifles,
shotguns, and long guns - like .AK-47s - in gun shops in four southwest-border states.
In this new year. 1 hope we can work together to provide law enforcement agents with the
tools they desperately need - and have requested - to protect our citizens and ensure their own
safety. Indeed, incidents of violence against law enforcement officers arc approaching the
highest levels we've seen in nearly two decades, even though violent crime is down overall. Last
year, a total of 177 federal, state, and local officers lost their lives in the line of duty - a 16
percent increase over 2010. .More than 70 of these deaths involved firearms - 20 percent more
than the previous year. And, since the beginning of this year, an additional 14 officers have been
killed - half of them in gun-related incidents.
That is unacceptable. The Justice Department is committed to turning back this rising
tide, and to protecting those who serve on the front lines. We’ve designed and implemented a
comprehensive new training initiative to provide law enforcement leaders with the information,
analysis, and cutting-edge tools they need to respond to a range of threats ~ including ambush-
3
131
style assaults. We've developed and distributed 8,000 Officer Safety Toolkits, and have
partnered with public safety professionals at every level to make sure our officers have the
communications platforms neccssaiy to share information more quickly - and to more
effectively identify and combat threats. And we’ve built a robust network of relationships -
between state, local, and tribal authorities; key federal partners; private sector stakeholders; and
Cabinet-level agencies - to explore new strategies, invest in critical research, and ensure that this
vital work remains a top priority. Let me be clear; nothing is more important than ensuring the
safety of the brave law enforcement professionals who put their lives at risk for us each and
every day.
But we can't make the progress we need - and that our law enforcement partners deserve
- without your assistance and your leadership. .As I have said before. I am determined to ensure
that our shared concerns about these flawed law enforcement operations lead to more than worn-
out Washington “gotclia" games and cynical finger pointing. The Department of .lustice stands
ready to work with you - not only to correct the mistakes of the past, but also to strengthen our
law enforcement capacity in the future.
I look forward to discussing this, and I would be pleased to answer your questions.
4
132
Chairman ISSA. Before I begin my questioning, Mr. Attorney
General, would you agree to release to us legal opinions on the con-
stitutionality of the material that you have thus far refused to sup-
ply the committee?
Attorney General Holder. To the extent that there are legal
opinions, I will look at them; and to the extent that they can be
provided, I have no objection to that. I don’t know if these are OLC
opinions that OLC would have an objection to providing. But to the
extent that I can, I will make those available to you.
Chairman IsSA. Okay.
I will begin my questioning I guess by following up.
Mr. Attorney General, you have — the executive branch has exec-
utive privilege. It is narrow. It is well defined. There is case law.
If you do not find a legitimate basis to deny us the material we
have asked for, we will seek the remedies necessary to compel.
Having said that, I appreciate your being here today; and I don’t
want to waste any of your or my time on this at this point.
Let’s go through a couple of items here.
First of all, it is reported through discovery that we have re-
ceived that Mr. Monty Wilkinson may have informed you of Agent
Terry’s murder in a timely fashion. Is that true?
Attorney General Holder. He may have. I know the murder oc-
curred December 14th. I heard about it I think probably within 24
hours. I don’t know if it came from Monty Wilkinson or from some
other member of my staff, but I knew about the murder within 24
hours of its occurrence.
Chairman IsSA. When you were informed about that within 24
hours, did anyone inform you or allude to the fact that the weapons
found at the scene were from Fast and Furious?
Attorney General Holder. No. I didn’t know about Operation
Fast and Furious until the beginning parts of 2011 after I received
that letter from Senator Grassley I guess at the end of January,
and then that was about Operation Gunrunner. I actually learned
about the Fast and Furious operation in February of that year.
Chairman IssA. Would you make available to us through what-
ever records you can find the name of the person who informed you
so that we can ascertain why that individual would not or did not
tell you what was widely known almost immediately, that in fact
law enforcement allowed weapons walked — ^basically, that these
were Fast and Furious weapons? The emails that we have received
through whistleblowers show us extensively that law enforcement
was aware and concerned about it. We would like to know why
someone kept that from you.
Attorney General Holder. I am not sure that anybody kept it
from me. I mean, I found out about it, as I said, I think in Janu-
ary-February 2011, and I am not even sure how I found out about
it. It might have been either through a letter I received from Sen-
ator Grassley on February 9th — I am not sure if it was contained
in there. There were certainly media reports about it in February.
Again, I am not sure exactly how I found out about the term “Fast
and Furious.”
Chairman IsSA. Would it be fair from your own knowledge to say
that neither Lanny Breuer as head of the Criminal Division nor
133
Jason Weinstein did anything to stop the program after they
learned of what it was about?
Attorney General Holder. Stop the program
Chairman ISSA. Fast and Furious, prior to Brian Terry’s death.
Attorney General Holder. I mean, they both admitted that they
were aware of Operation Wide Receiver and never connected the
techniques that were used in Wide Receiver to Operation Fast and
Furious and, as a result, did not take any action in that regard;
and both have admitted that that was a mistake.
Chairman IsSA. Let’s go through this. I think in my limited time
I want to make sure that we do deal with Wide Receiver versus
Fast and Furious.
As of today, do your law enforcement authorities such as the
ATF have the ability to see a straw purchase — ^believed straw pur-
chase — and, rather than arrest them at the door with no evidence,
follow them to the next location?
Attorney General Holder. See them
Chairman IssA. In other words, does law enforcement have the
ability to follow suspected gun traffickers with the weapons in their
car from location to location?
Attorney General Holder. And keep them under constant sur-
veillance?
Chairman IssA. Yes.
Attorney General Holder. They certainly have that capacity.
Chairman IssA. Okay. So as far as we have been reported, every
piece of evidence shows that in Wide Receiver every effort was
made, unsuccessfully in many cases, which is one of the things that
concerns us, to follow the weapons. To your knowledge, was there
ever an order under Wide Receiver to abandon following the weap-
ons and let them walk?
Attorney General Holder. Well, I would say, you know, during
the early — as I have seen more on Wide Receiver as we have pro-
vided materials
Chairman IsSA. A yes or no would be a good start, Mr. Attorney
General. Do you know of any time in which people were ordered
to peel off and let the guns walk under Wide Receiver?
Attorney General Holder. I am not sure about whether they
were ordered to or not, but I do know that in the early phases of
the investigation observations were made of people buying guns
and decisions made not to surveil them after those purchases were
made. And, as a result, 100, 400 — I am not sure exactly what the
number is — of guns walked; and there were complaints raised by
people connected to the investigation about the fact that guns were
walking in Operation Wide Receiver.
Chairman IsSA. Since it was never allowed to simply let known
straw buyers, known guns fall into illicit criminals’ hands, have
you taken any action to fire anyone or discipline anyone from Oper-
ation Wide Receiver?
Attorney General Holder. Operation Wide Receiver occurred in
the prior administration. I don’t think that
Chairman IssA. We are not talking about political appointees.
We were talking about people who would transcend the transition.
Have you, to your knowledge, disciplined anyone from Wide Re-
ceiver?
134
Attorney General Holder. No, I have not.
Chairman ISSA. Have you disciplined anyone from Fast and Furi-
ous?
Attorney General Holder. No, I have not, as yet. As yet. There
have been personnel changes made at ATF. We obviously have a
new U.S. attorney in Arizona. We have made personnel switches at
ATF. People have been moved out of positions.
I am certainly going to wait and see what I get from the Inspec-
tor General, the report that we have from the majority. I don’t
know if the minority is going to produce — from the minority. I don’t
know if the majority is going to produce a report. And I will be tak-
ing all that into consideration, in addition to all these things I am
able to find out on my own, and make personnel changes as I think
they are appropriate.
Chairman IsSA. My time has expired. I will say that I don’t think
the minority report is going to do you a whole lot of good since it
seems to say more or less nothing happened.
With that, I recognize the author of the minority report, Mr.
Cummings, for his round of questions.
Mr. Cummings. Thank you very much, Mr. Chairman, and I re-
spectfully disagree with what you just said. Our staff worked very
hard on that report. And, by the way, it is based upon the evidence
that the majority presented, that the majority presented. You all
heard the same evidence that we heard, and we basically looked at
the facts and presented them.
Mr. Attorney General, I want to thank you again; and I am sorry
my colleagues on the other side of the aisle have made completely
unsubstantiated allegations against dedicated and hardworking
FBI agents, DEA, officials and others. And I want to thank all of
them for what they do every day to protect the American public.
I face a real challenge today. I have to ignore the political side-
show and keep my focus on the very real problems that led to these
flawed operations.
As our report explains, we have no evidence that you approved
gun-walking. We have no evidence that you knew about it. The
same can probably be said of former Attorney General Mukasey. I
assume that if either of you actually heard that gun-walking was
taking place, you would have put a stop to it.
As I review this report from my staff, however, I get a little bit
upset. First I get upset that this happened. Hundreds of weapons
went to criminal networks on both sides of the border because
agents did not arrest suspects when they could have.
I also get upset that this went on for so long. We identified four
different operations in Phoenix over 5 years across two administra-
tions involving hundreds of weapons, and these weapons put law
enforcement agents in danger.
In your written statement you noted that 177 officers lost their
lives in the line of duty last year, and 70 of those deaths involved
firearms. As the country’s chief law enforcement officer, what is
your reaction to the fact that these operations continued for so
long?
Attorney General Holder. Well, it bothers me a great deal when
one sees the death toll that we have seen in Mexico, 40-50,000 peo-
ple have been killed over the last 5 years, 64,000 guns traced from
135
the United States into Mexico, and that is traced, which means
there are probably substantially greater numbers of guns that have
gone from the United States into Mexico. And the concern I have
is that with these guns going into Mexico and cartel activities that
reach into the United States that at some point these guns will be
trained on law enforcement officers.
Though we have seen an historic drop in the crime rate to 40-
and 50-year lows, we have seen a rise over the last 2 years in the
number of police officers. Federal enforcement agents, who have
been killed. I have been to far too many funerals, I have had to
write far too many letters, talk to far too many widows about the
death of brave people who have died in service to their country,
and we have to do something about it. We have to.
Mr. Cummings. The ATF Deputy Director William Hoover, an ex-
perienced career ATF officer, became concerned in 2010 about the
number of weapons involved in Fast and Furious. He told us he did
not know about gun-walking, but he ordered an exit strategy based
on his overall concerns. He told the Phoenix office to end this oper-
ation within 90 days and bring indictments, but they didn’t do it.
They did not like ATF headquarters running their cases, and they
continued for months to encourage gun dealers to sell to straw pur-
chasers without arrest.
During his interview, Mr. Hoover also told us that he never told
anyone at the Department of Justice about his general concerns
with the operation or his order for an exit strategy, and our inter-
views with Justice Department officials confirm that.
So I have two questions. I understand that field agents don’t like
bureaucrats in Washington looking over their shoulder, but how
can a field office effectively ignore the directives of ATF head-
quarters in this way? And, second, what specific reforms are now
in place or should we consider to ensure better coordination and
oversight?
Attorney General Holder. Well, there is a tension between the
field and headquarters. I have been in the field, I have been in
headquarters, and depending on where I sit, I think greater wis-
dom exists in that place. We have to come up with ways in which
we make clear what the policies are.
After I heard about gun-walking — I don’t know about Attorney
General Mukasey, but after I heard about gun-walking, I was very
firm. I had a directive sent out by the Deputy Attorney General to
the field that indicated that those kind of techniques were simply
unacceptable, were not to be used by the Department of Justice.
Now, Todd Jones, the Acting Director at ATF, has instituted a
number of reforms. I want to say that the report that you have put
out contains at the back a number of suggestions with regard to
reforms, and I think — I don’t remember what the number is, but
a substantial number of those have been instituted by Todd, among
them coming up with ways in which we ensure that the trafficking
of guns, the gun-walking, does not occur, that more levels of review
have to occur.
I think also significant, given the fact that Agent Dodson is here,
is that we have to have ways in which at ATF people who have
concerns about ATF operations have a greater ability, don’t have
any concerns for their careers about surfacing things within ATF,
136
so that the leadership at ATF and ultimately back at headquarters
can take the necessary corrective actions. But I would salute the
minority report for the management changes and policy changes
that are included in that report.
Mr. Cummings. Thank you very much, Mr. Chairman. My time
is up.
Chairman ISSA. Thank you.
We now go to the former chairman of the full committee, Mr.
Burton, for 5 minutes.
Mr. Burton. Nice seeing you again.
Attorney General Holder. It has been a while.
Mr. Burton. Yes, it sure has.
You know, it is very interesting, Mr. Attorney General, for 6
years I remember when you were with Janet Reno and the Deputy
Attorney General, and we fought to get documents, and we had a
difficult time. You have said here today that there are certain docu-
ments that you will not give us because of the separation of pow-
ers. Now, we have been down that road before and we got them,
but we had to threaten that we would have a contempt citation in
Congress. This is not just during the Reno administration but dur-
ing Gonzales as well. And we got the documents. So I think you
are hiding behind something here that will not stand up. So you
ought to give us the documents.
Now, we received 6,000 documents with redactions. And I know
that is an old school policy, you know. Send them up here and cross
out everything of relevance and let us try to figure out what it is.
And you dump them on us on Friday night so that the staff here
can’t do anything with them unless they stay over the weekend and
work 10, 12 , 14 hours. I have been down that road, too.
Now, there are 93,000 documents — 93,000 documents that you
are not giving this committee; and you are saying, well, the separa-
tion of powers prohibits you from doing that. That is baloney. That
is just baloney. And I have worked with you for 6 years — well, I
wouldn’t say “with” you. I have worked for 6 years when you were
the Deputy Attorney General.
So why don’t you give us those documents? The conclusion that
I come to is there are some things in there that are being hidden
that you don’t want us to see. I don’t know if it involves you or
some other ATF agents or some other members of the Justice De-
partment. But this committee is the Oversight Committee, and we
have every right under the Constitution to check on what you are
doing. We are supposed to oversee the executive branch, and you
are part of that branch.
So for you to deny this committee anything like that is just dead
wrong, and I don’t think you are going to find any way that you
can do it, and I would urge the chairman to move a contempt cita-
tion against you if you don’t give them to us.
Now, let me just ask you a couple of questions.
Why won’t you let Patrick Cunningham, the head of the Criminal
Division in Phoenix, and Emory Hurley, a line prosecutor, why
won’t you let them come and talk to the committee? If you can’t
let them do it publicly, you ought to let them do it in a private set-
ting. Why won’t you let them do that?
Attorney General Holder. Well, a couple of things.
137
Just for the record, I was only a Deputy Attorney General for 4
years. It seemed like 6.
Mr. Burton. Okay. Well, 4 years. It seemed like longer than that
for me.
Attorney General Holder. All right, longer than 6 for me as well
then.
Chairman ISSA. Would the gentleman yield?
Mr. Burton. I would he happy to yield.
Chairman IsSA. Since Mr. Cunningham has now taken the Fifth,
I would say none of us have that direct authority.
But to add to the gentleman’s question, would you make all testi-
mony and information on Mr. Cunningham immediately available
to us unredacted so we may evaluate to a great extent what you
know about why he took the Fifth?
Go ahead. I yield back.
Attorney General Holder. Well, in terms of making available —
I am not sure where you get the number of 93,000 documents.
Those redactions that have occurred are only because there are
things that are either not relevant or are protected by grand jury
secrecy rules, court orders that have sealed material. We have pro-
vided to this committee material that is relevant and only redacted
that which is necessary, and there is a key that tells you why
something was redacted.
With regard to the two people you have talked about. Hurley —
Mr. Hurley is a line prosecutor, and we never make line prosecu-
tors available. That is every Attorney General that I know has fol-
lowed that policy. Mr. Cunningham no longer works in the Justice
Department, and so I don’t have the ability to compel him to tes-
tify. He left the Justice Department I think this past Monday or
last Friday.
Mr. Burton. You asked him to leave, I guess, didn’t you?
Attorney General Holder. No.
Mr. Burton. You didn’t?
Attorney General Holder. No.
Mr. Burton. He left on his own after he took the Fifth Amend-
ment?
Attorney General Holder. He had planned to leave well before
he invoked his Fifth Amendment privilege to take a job in private
practice — or at a company.
Mr. Burton. As I understand it, the IG has 80,000 documents,
and you have given us 6,000. So whether we are talking about 93
documents or 80,000, this committee has asked for those and has
not gotten them, and it appears as though we are being
stonewalled and there is something that is being hidden.
Let me ask you another question: Have you apologized personally
to the whistleblowers who were in effect called liars by those with-
in your own agency, when we now know they were telling the truth
and we wouldn’t know any of this today if they hadn’t come for-
ward? I am talking about people like John Dodson, who is here
today, and Peter Forcelli. Have you apologized to them personally?
Attorney General Holder. I have not apologized to them.
I spoke to Mr. Dodson, Agent Dodson, at the beginning of the
hearing when the chairman was kind enough to bring him by. I
138
gave him my telephone number and told him to give me a call if
he wants to talk about the way
Mr. Burton. Give you a call?
Attorney General Holder. Give me a call.
Mr. Burton. Why don’t you call him and apologize? Because you
are the Attorney General of the United States, and you are in
charge of these people, and they were in effect called liars, and
they were telling the truth. And I think, as the head of that agen-
cy, it should be your responsibility to say hey, guys, I am sorry that
you were called liars when you did tell the truth.
Attorney General Holder. I am not aware of them being called
liars.
But, beyond that, what we have tried to do is treat them with
respect. I don’t think any adverse action has been taken against
any of the people who came here and testified before this com-
mittee.
To the extent that there are concerns that Mr. Dodson has, I will
be more than glad to talk to him about them. I will note, however,
that he has had a meeting with the Acting Director of ATF and I
think he has expressed whatever his thoughts were, at least at
that time. If that has not been sufficient, as I said, I am more than
glad to have a conversation with him.
Mr. Burton. I wish you would call him.
Thank you, Mr. Chairman.
Chairman IssA. The gentleman’s time has expired.
Did you want to answer on the Cunningham question of mate-
rials in your possession now that he has left under this cloud?
Attorney General Holder. Yes. I wouldn’t say it was “under a
cloud”. But, anyway
Chairman IsSA. Taking the Fifth is not a cloud?
Attorney General Holder. I don’t know why he took the Fifth.
There are a variety of reasons, not the least of which was that ap-
parently there was a report issued by this committee or a state-
ment by this committee that he had acted inappropriately. I don’t
know why he invoked his Fifth Amendment privilege. That is cer-
tainly his right as an American citizen.
We have provided already 153 documents with regard to Mr.
Cunningham that entails about 387 pages of material. We will con-
tinue to look at that material; and to the extent there is informa-
tion that is relevant, we will provide it to the committee.
Chairman IsSA. I thank you.
We now recognize the other former chairman of the committee,
Mr. Towns, for 5 minutes.
Mr. Towns. Thank you very much, Mr. Chairman.
This committee has not obtained one shred of evidence that
would contradict your testimony, Mr. Attorney General, not one
witness, not one document, not one email; and still some continue
to suggest that you did personally authorize gun-walking and the
tactics in Operation Fast and Furious. I hope this will be the last
time you have to answer this question: Did you, Mr. Attorney Gen-
eral, ever authorize gun-walking?
Attorney General Holder. I did not, and I will say it that way.
I am from New York, and I would say it in a different way, but
139
I am going to have great respect for this committee and simply say
I did not.
Mr. Towns. I am from New York, so I would understand your
answer. And, of course, my colleague next to me would, also.
Did you ever authorize the controversial tactics employed in Op-
eration Fast and Furious, the non-interdiction of illegal firearms,
in order to build a bigger case?
Attorney General Holder. Not only did I not authorize those tac-
tics, when I found out about them I told the field and everybody
in the U.S. Department of Justice that those tactics had to stop,
that they were not acceptable, and that gun- walking was to stop.
That was what my reaction to my finding out about the use of that
technique was.
Mr. Towns. To your knowledge, did Deputy Attorney General
Gary Grindler or Assistant Attorney General Lanny Breuer ever
authorize gun-walking or the tactics employed in Fast and Furious?
Attorney General Holder. To my knowledge, they did not.
Mr. Towns. Let me ask this: If you had been asked to approve
of gun-walking, what would you have done or said?
Attorney General Holder. No. Simple.
You know, there are questions that you have in public corruption
cases when you are trying to decide are you going to let the money
walk. There are questions that you have in narcotics cases if you
are going to let the drugs walk so that you can make a case. You
have spirited conversations about that, and I can understand how
there will be differing opinions.
The notion that you would let guns walk in a firearms case is
for me absurd, absurd, and it was the reason why I said it cannot
happen. While we stopped it, it is not DOJ policy, and anybody who
does it now is breaking a direct directive from the Attorney Gen-
eral of the United States.
Mr. Towns. So if you had been asked or told by ATF or the U.S.
Attorney’s Office about the tactics in Operation Fast and Furious,
how would you have acted or responded?
Attorney General Holder. In the same way that I did I think
in early March 2011, by telling everybody in the Justice Depart-
ment, don’t do this. It is unacceptable, it is stupid, it is dangerous,
and not something that this Department of Justice can ever do.
Mr. Towns. You know, I want to thank you for coming up and,
of course, thank you for your testimony. I think it is pretty clear
that the attempts to tarnish your reputation with these unsubstan-
tiated allegations is pure politics and this definitely has a political
flavor, and that is unfortunate.
So, on that note, I will yield back.
Chairman ISSA. I thank the gentleman.
We now go to the gentleman from North Carolina, Mr. McHenry,
for 5 minutes.
Mr. McHenry. Thank you, Mr. Chairman.
Thank you. Attorney General Holder, for being here.
Listening to the answer you had from the former chairman, it
seems to me when you see that folks did not follow policy, did not
follow your directives, and we are here 13 months after you found
out that an agent was murdered for policies that you did not sup-
port, and we find out you have not fired a single individual, we find
140
out that you have not rebuked any staff memhers — heck, you
haven’t even put a letter in people’s personnel files saying that
they on their watch acted and an agent was murdered. That is ab-
solutely absurd from this side of the dais. So I ask you, why have
you not taken steps to make sure this doesn’t happen again?
Attorney General Holder. Well, I have taken steps. Certainly
with regard
Mr. McHenry. Yes, you told people you were mad, you were
upset. That to me is silly. You have not taken action. You have not
fired anybody. You haven’t changed policy. Because it is clear you
didn’t enforce the policy before. You didn’t know — you are saying
you didn’t even know about it. So it strikes me as incompetence in
terms of management.
Attorney General Holder. Well, I am not sure you understand
how the Justice Department works. I didn’t express the fact that
I was mad or that I thought it was silly. I issued a directive that
said that the Attorney General of the United States that says this
policy, this kind of technique, is inappropriate and should not be
followed.
We are still in the process of trying to determine, the Inspector
General is trying to determine, where this policy originated. We
know that it started probably in the ATF office in Phoenix. It was
approved by the U.S. Attorney’s Office in Phoenix. Now, exactly
who the people were who actually approved the technique we are
still in the process of trying to work through.
But that is not all that I have done. I have made personnel
changes with regard to leadership positions. We have moved people
around. We have instituted a series of policies now that I think are
designed to make sure that that doesn’t happen again.
Mr. McHenry. So an agent was murdered, and your action is to
move people around. That seems to me to simply inconvenience
people, not to rid them of Federal employment.
Attorney General Holder. Well, to the extent that we find out
who precisely was involved in this or who gave that order, I can
assure you that, unless there is some truly compelling cir-
cumstance, that person, those people will be removed from Federal
service.
But that is not all we have done with regard to the murder. We
are in the process of investigating that murder, and the people who
are responsible for it will be held accountable, and I expect that
you will hear something about that relatively soon.
Mr. McHenry. Relatively soon. Thirteen months later.
Attorney General Holder. No. Well, these matters
Mr. McHenry. It is 13 months after the fact, sir. That is what
I am saying. At what point are you going to take action?
Attorney General Holder. As soon as we are in a position to
make arrests and hold people accountable, put them in a court of
law and try them with maximum charges. These are not cases
Mr. McHenry. Is that likely this year?
Attorney General Holder. I think that is likely this year.
Mr. McHenry. Is it likely in the next 6 months?
Attorney General Holder. Yes, I think it is likely in the next 6
months.
Mr. McHenry. Could you see this happening this quarter?
141
Attorney General Holder. When does this quarter end? I don’t
know.
Chairman IssA. March 31st.
Attorney General Holder. It is possible.
Mr. McHenry. It is possible. Okay, 13 months later we have the
possibility of somebody actually being punished for an agent being
killed. This is absolutely absurd.
Mr. Chairman, I yield the balance of my time.
Attorney General Holder. No, it is not absurd. It takes time to
build a case that you are going to be able to take before a jury with
a high standard of proof, convict somebody, hold them accountable.
You don’t want to go into court and put yourself on a time limit
and at 3 months say let’s take whatever we have and get into court
and, because some critics are going to say we are not acting fast
enough, end up losing the case and then the people who are re-
sponsible for this heinous act are not held accountable.
We go into court when we think we have cases that are ready
to go. I am not putting any pressure on people in that regard, other
than to do it as quickly as they can but to do it as thoroughly as
we can so that we bring the best possible case that we can.
Chairman IsSA. I thank the gentleman for yielding.
Quickly following up — no, it isn’t — Mr. Lanny Brener is not going
to be criminally indicted or anything else, but when Mr. McHenry
was asking about holding people accountable, he was really asking
about people that work for you. Now, is your management style a
hands-off or is it a hands-on? Do you want to know what is going
on or do you want others to handle it and brief you at relatively
high level?
Attorney General Holder. I think I have a hands-on style.
Chairman IsSA. If you have a hands-on style, have you read any
of or been fully briefed on any of the wiretaps, including the March
10th wiretap in this case?
Attorney General Holder. These wiretaps are very voluminous,
read well kind of things. I have not read them.
Chairman IssA. Okay. Kenneth Melson told us — and this has
been publicly reported — that in fact he was sick to his stomach
when he discovered it. This was approved by Lanny Brener’s office.
Indications are that your chief deputy knew about this. I mean, it
comes through Criminal Division at some point.
The question is, will you or isn’t it appropriate that you know
about these wiretaps so that you could know what former ATF, act-
ing ATF Director knew, which was these wiretaps are reasonably
believed to be sufficient in what they disclosed, that many parts of
this operation should have stopped, should have stopped sooner,
and that people were saying that at DEA and other places, and
that the Office of Criminal Division, Lanny Brener’s division, if you
will, knew or should have known that?
That is the kind of thing Mr. McHenry was asking about, is hold-
ing people accountable, whether they are career professionals or po-
litical appointees. Are you prepared to do any of that prior to the
Attorney General’s final report? Because you haven’t done any so
far, as far as we can tell.
Attorney General Holder. I think you mean the Inspector Gen-
eral’s report.
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Chairman ISSA. I am sorry, the Inspector General’s. I am sorry,
Mr. General. I keep confusing the two generals.
But, yes, I very much note your Inspector General’s report, which
seems to be the reason for the delay in executing on disciplinary
actions.
Attorney General Holder. Well, I mean, you have packed a lot
into that question.
I think, first off, there is no indication that Mr. Breuer or my
former deputy were aware of the tactics that were employed in this
matter until everybody I think became aware of them, which is like
January-February of last year. The information — I am not at this
point aware that any of those tactics were contained in any of the
wiretap applications.
I will say this: To the extent that those wiretap applications have
been shared, that is in direct violation of court orders, and if I
find — if I find that somebody in the U.S. Department of Justice has
shared the contents of a wiretap application, that will be something
that will have to be looked at.
There is a wide variety of things, information that we can share,
but I am not going to go against sealing orders by a court with re-
gard to a wiretap application, and anybody who leaks that material
or submits that material for people to examine does so at their
peril.
Chairman IssA. I appreciate that. For the record. Members of
Congress are not covered by that prohibition. Members of Congress
are not in any way under that order. In fact, if we receive the infor-
mation from whistleblowers, just like the press, it is in fact legiti-
mate for us to know it and to act on it in our investigation. We are
not covered by that Federal Court order.
Your law enforcement people related — before I yield, did you
want to respond after you got a note on that?
Attorney General Holder. With all due respect, Mr. Chairman,
I think that direction that you just said about the media and Con-
gress and court orders is really incorrect, and I think you act at
your peril if you think that is the truth.
Chairman IssA. Well, certainly we would say that the release of
information from our testimony of Kenneth Melson that appears to
have been leaked to your people also would be inappropriate, but
we will get to that at another time.
With that, we recognize the gentlelady from New York for 5 min-
utes, Mrs. Maloney.
Mrs. Maloney. Thank you. I would like to respond to my good
friend and colleague, Mr. McHenry’s statement that the AG had
not responded to Agent Terry’s death. He responded immediately,
and has expressed his concern for the other agents that are being
killed at a higher rate than ever in our history.
Mr. McHenry. If the gentlelady will yield.
Mrs. Maloney. No, I will not yield. I will not yield.
And not only did he do that, he immediately took swift action to
stop gun walking, which did not happen in the prior administra-
tion, and established reforms to prevent this type of flawed oper-
ation from ever happening again. He further called for — and we
could all help him do this, particularly the Republican majority —
to confirm a permanent ATF director. That would help more than
143
anything. He also called for a Federal firearms trafficking statute.
He called for appropriate funding, for the ATF to do its job and in-
crease penalties for straw purchasing. So these are some of the con-
crete actions that he has taken in response to that tragic death.
And once again today, this investigation continues on its vast
and curious mission to fix the symptoms rather than the cause of
so much deadly gun violence on the southern border. And this com-
mittee has unfortunately refused time and again to examine the se-
rious underlying problem that so heavily contributed to a series of
ill-conceived, fatally flawed programs, such as Fast and Furious.
And as this committee well knows, and everyone should know in
America, Fast and Furious was not the first, but the fourth inves-
tigation to use gun walking as a tactic to go after bigger fish. And
the gun walking strategy dates back to 2006, the prior administra-
tion. And just to underscore how vast and curious this investiga-
tion is, let’s review that
Is this the sixth occasion, Mr. Attorney General, that you have
been before Congress on this issue?
Attorney General Holder. It’s the sixth time I have testified
about Fast and Furious.
Mrs. Maloney. This is the sixth time he has testified on Fast
and Furious. And he handed out a list of what his responsibilities
are, which I would like him to be able to do. And I want to add
to that one that I’m grateful for, and that is implementing the 9/
11 health and compensation bill, on which your whole unit is doing
such a brilliant job. Thank you so much. We appreciate it.
Also, over 6,400 papers and ongoing IG review, all of this is tak-
ing place. But in your testimony today, I appreciated your tribute
to the courageous agents that work in the ATF. And you spoke
about the whistleblowers and how courageous they are. And I
wanted to point out the testimony of Special Agent Peter Forcelli,
who called the current laws against gun trafficking “absolutely
toothless.” And he went on to testify that there was no enforcement
and he went on and said all kinds of things.
Do you agree that there’s no enforcement, that law enforcement
really doesn’t have the tools to do the job to crack down on gun
trafficking?
Attorney General Holder. I really agree with Agent Forcelli. I
mean, there’s really a need, I believe, for a Federal firearms traf-
ficking statute. We need increased penalties for straw purchasers
who engage in that kind of inappropriate activity. And I think that
we would like to work with Congress so that we can put in place
these measures that will ultimately help ATF and the Federal Gov-
ernment be more effective in the fight that we all say we want to
have, which is to stop the flow of guns into Mexico.
Mrs. Maloney. After that hearing with Special Agent Forcelli, I
worked with Ranking Member Cummings and also with Congress-
man Towns and Congresswoman Norton, and we drafted a bill
which is to crack down on illegal trafficking conduct, not law-abid-
ing gun owners, but would go after those illegal activities. And we
should get busy working on helping to give them the tools. We
know that we do things that are far more helpful than going on a
politically motivated fishing trip, which I feel this is what we are
doing today. And the real agenda of this investigation does not aid
144
or honor those who risk their lives every day, working to keep
Americans safe from gun violence.
And I must say that this is getting out of hand. The AG’s testi-
mony that over 60,000 guns, I believe you said, have been traced
in Mexico that are directly tied to having been gotten there from
America. And I must say that one chilling example was an ad that
al Qaeda put on their Web site saying. Go to America. Get guns.
It’s so easy to do. Get guns for your illegal activities.
So I want to congratulate you for your vision and mission of
wanting to give law enforcement the tools to get the job done, to
have a Federal statute banning gun trafficking with increased pen-
alties.
Chairman IssA. Would the gentlelady yield?
Mrs. Maloney. Yes. I most certainly will.
Chairman IsSA. I join with you in believing that Andrew Traver
who, I believe, is the November 2010 designate should in fact be
given an up-or-down vote, should, in fact, be given an opportunity
to be confirmed. I would note that he wasn’t put up. No one was
put up for the first 2 years of the Obama administration. And it’s
sad that they didn’t have somebody in the queue earlier.
I thank the gentlelady for yielding.
Mrs. Maloney. I want to thank the chairman for supporting the
confirmation, and you certainly can help us make that happen.
Chairman IssA. We’ll do what we can.
Mrs. Maloney. I appreciate that.
Chairman IsSA. I thank the gentlelady.
I now recognize the gentleman from Utah, Mr. Chaffetz, for 5
minutes.
Mr. Chafeetz. Thank you, Mr. Chairman. Thank you, Mr. Attor-
ney General, for being here. I had an opportunity on the Judiciary
Committee to ask you questions on December 8, 2011. I had asked
you if you had spoken to President Obama, Secretary Clinton, or
Secretary Napolitano. You said that you had not spoken to either
of those three about Fast and Furious. Is that still true today?
Attorney General Holder. With regard to Secretary Napolitano,
yes. Secretary Clinton, yes.
Mr. Chafeetz. I’m sorry. Secretary Clinton, you have spoken
with her about Fast and Furious?
Attorney General Holder. No. Well, I should say no. Secretary
Napolitano, no. Secretary Clinton, no. And I’ve had passing con-
versations with the President just about the fact of my testifying
in connection with Fast and Furious.
Mr. Chafeetz. On Wednesday, February 16th, you issued a press
release along with Secretary Napolitano saying that you had met
together. This is on the heels of Jaime Zapata. He had just been
killed in Mexico. There were questions as to whether or not there
were ties to Fast and Furious. You say that you didn’t have any
interaction with Janet Napolitano about Fast and Furious. My
question is about Secretary Clinton. What sort of interaction did
you have with the State Department?
Attorney General Holder. I’m not sure at what lower levels, if
there was interaction between the Justice Department and people
at the State Department. I know that I have not interacted with
Secretary Clinton with regard to Fast and Furious.
145
Mr. Chaffetz. I was questioning whether or not you had actu-
ally had some interaction, or the words Fast and Furious came up.
You had some interaction. You said, ‘You have to understand
something about the way Washington works.” Explain that to me
and the interactions that your department or agency has had with
the State Department.
Attorney General Holder. Well, one of the things that I was say-
ing — I was trying to say and I got cut off, was that when people
know that I’m going to be the subject of these kinds of hearings —
you know, six times and all that — nobody necessarily wants to get
involved in these kinds of things or get dragged into it and then
have some interaction, conversation that I had with them be made
more than it is. And I understand when people don’t necessarily
want to talk to me about Fast and Furious, knowing that at lower
levels
Mr. Chaffetz. You know that they’re withholding information
from you.
Attorney General Holder. No, they’re not.
Mr. Chaffetz. Well, you just said that they’re not going to pro-
vide you the information because they don’t want to drag you into
it.
Attorney General Holder. I said they didn’t want to have con-
versations with me.
Mr. Chaffetz. Isn’t that withholding information? If you can’t
tell the boss what’s really going on, you are going to be oblivious
to what’s going on.
Attorney General Holder. We are talking about cabinet-level
people. And I’m saying that the people who work under them, ei-
ther DHS, State other executive branch agencies, are certainly pro-
viding information to the Justice Department so that we have ac-
cess to whatever information
Mr. Chaffetz. And is the Justice Department providing that in-
formation to, say, the State Department or Homeland Security?
You may say, we’re not having face-to-face discussion which trou-
bles me — I don’t care whether you are a Democrat or a Republican,
the idea that you are not being informed and not having conversa-
tions because you are afraid of coming to Congress is troublesome,
at the least.
Attorney General Holder. I’m not afraid to come to Congress. I
have been here six times.
Mr. Chaffetz. I know. But if you are not being informed so you
purposely can claim ignorance on the issue, that’s a problem. My
question is, at the lower level, is there an expectation on your part
that there is interaction between these departments and agencies?
Attorney General Holder. Well there is not only an expectation.
I know that, in fact, there is that kind of interaction because with
regard for instance to the death of Agent Terry, I know that DHS
is working with the FBI, State Department and Justice.
Mr. Chaffetz. What about the State Department?
Attorney General Holder. State, you know, doesn’t have as di-
rect a role. Obviously we interact with our counterparts in Mexico,
and we talk to the State Department, inform them of contacts that
I have. In fact, I will be speaking to the attorney general from Mex-
ico in the latter part of — well, I guess, early this afternoon.
146
Mr. Chaffetz. In paragraph five of your testimony today, you
talk about the national security crisis along the border. I guess my
concern, Mr. Attorney General, is, you have an expectation that
there’s interaction between the Department of Justice and the
State Department, correct?
Attorney General Holder. Oh, there certainly is, through the
Merida Initiative, if nothing else. And through other ways in which
our law enforcement components talk to one other
Mr. Chaffetz. I am sorry. My time is so short.
Chairman IssA. Would the gentleman suspend? Do you have a
point of order?
Mr. Towns. Mr. Chairman, I think that if he is asks a question,
he should have an opportunity to answer it. I am trying to follow
it. But the point is that without him being able to respond, what
are we really doing?
Chairman IssA. The gentleman’s point is valid, and I appreciate
that both under your leadership and hopefully under mine, we
make sure that all witnesses get to answer.
Mr. McHenry. Mr. Chairman, may I ask for 1 additional minute
for the gentleman?
Chairman IssA. Without objection, so ordered.
Mr. Attorney General, at the end of any round of questioning
within a reasonable period of time by yourself, if you feel you have
been unable to answer a question — and I would like you to be suc-
cinct — we will give you the additional time at the end so you may
answer. I do respect the fact that a Member may want to go on to
a next question. So you may have to wait until the end to sort of
revise and extend briefly. And with that, I mean no disrespect. The
gentleman was fully within his rights. But I wanted to make that
clear because the past chairman and my policy are to make sure
that people get to make full answers, even if it’s not during the 5
minutes.
Mr. Chaffetz. Mr. Chairman, I would ask that without the
starting of the clock — again, if he wants to fully answer that. With
concern to Mr. Towns, I just want to be able to do the followup
question.
Chairman IsSA. The gentleman is absolutely right. The gen-
tleman will continue.
Mr. Chaffetz. If you want to more completely answer that,
please.
Attorney General Holder. I’m not sure where I was.
Mr. Chaffetz. The interaction between you — the Department of
Justice and the State Department on Fast and Furious, and that’s
the concern here is Fast and Furious.
Attorney General Holder. Right. We work together with our
State Department counterparts on a number of things in connec-
tion with Mexico. There is the Merida Initiative that really kind of
is the umbrella way in which we operate in Mexico in a law en-
forcement way. So there is a lot of contact at the lower levels and
not so lower levels. I know our Deputy Attorney General speaks a
great deal with his counterpart at the State Department.
Mr. Chafeetz. My question, Mr. Attorney General, is the testi-
mony from October 27th of this year that Secretary Clinton gave
over in the Senate where she said, “I can tell you that based on
147
the information on the part of the State Department that would
deal with this kind of issue, we have no record of any request for
coordination. We have no record of any kind of notice or heads up.”
How is it that the Secretary of State is saying, we’ve never been
involved in any way, shape, or form in Fast and Furious and you
are testifying that it’s happening on a regular basis?
Attorney General Holder. Well, you have to put this in the ap-
propriate context. What I’m saying is that we interact with them
in a number of ways. Now Fast and Furious might not be a pri-
mary thing that we are talking about with the State Department.
We are certainly working more closely with DHS when it comes to
Fast and Furious. But those kinds of things are discussed. It might
not be, you know, a primary thing that exists between a topic of
conversation between State and
Mr. Chaffetz. And I guess that’s the concern, Mr. Attorney Gen-
eral. We have 1,500 weapons. We’ve got 300 dead people in Mexico.
We have a dead U.S. agent. We’ve had an untold number of hear-
ings and discussions and press reports. And yet, you had the people
at the highest level of the government saying, well, we don’t talk
to each other because our people don’t tell us information because
we’ve got to remain ignorant because we’re going to have to testify
and they don’t want to get me involved. And at the same time,
you’re telling me that they are interacting with the State Depart-
ment on a regular basis, and the State Department, the Secretary,
is telling us, it isn’t happening. And Janet Napolitano is saying
very similar things at the Department of Homeland Security. If
we’re going to solve this problem and make sure it never happens
again, we have to solve these challenges. And I have no confidence
that you’ve addressed it or offered anything to actually solve it.
I yield back.
Chairman IssA. The gentleman’s time has expired. Did the gen-
tleman want to follow up?
Attorney General Holder. I’m not sure about the context in
which that remark was made by Secretary Clinton, but I can tell
you that when it comes to the issue of violence in Mexico, the prob-
lem of guns going to Mexico, we are joined with our partners at the
State Department
Mr. Chaffetz. Mr. Chairman, Mr. Chairman, can I read the
question?
Chairman IssA. Does the gentleman want the question read
back?
Mr. Chaffetz. No. The question that Secretary Clinton got. You
asked a legitimate question. I don’t know what context Secretary
Clinton asked
Chairman IsSA. The gentleman will suspend. If you make that
question available to the Attorney General’s staff so they can brief
him, we will return to that out of order to get an answer. But I
think, in fairness, we’ve given sufficient time. If you will make it
available to staff, we’ll make sure we get to it before the end of the
hearing.
With that, we go to the gentlelady from the District of Columbia,
Ms. Norton, for 5 minutes.
Ms. Norton. Thank you, Mr. Chairman. Mr. Chairman, I don’t
know if conversations with the Secretary of State, with Secretary
148
Clinton, or Secretary Napoli tano are of major importance here. But
I do know this, that after calling the Attorney General of the
United States six times before the Congress, I think the public
would have expected that we would have begun to talk about rem-
edy by this time; and yet there has been no remedy to give the Jus-
tice Department the tools it needs to prosecute straw purchasers or
gun trafficking. But here we go again with the sixth hearing.
Mr. Attorney General, I want to commend you for the changes
you have made, the multiple changes you have made while this
matter was unfolding and the facts were coming forward, recog-
nizing full well that until you get the inspector general’s report,
particularly considering that this is the Justice Department, to pro-
ceed without due process would be fairly unseemly. You have to
understand that when there’s an issue like this and it was very im-
portant because of the death of an agent, there is an incentive for
the committee, if it can get a hold of a highly placed government
official, to call on as much as you can because with him comes the
press and the public.
My concern, I must say, for the Attorney General today, who has
foreign and domestic matters of great moment on his plate, that at
least a remedy come out. And we certainly haven’t seen anything
even approaching that.
I would like to go through the 5 years of gun walking because
they all get merged. We have 3 years of gun walking, or so-called
gun walking in the Bush administration, 5 years total, two in this
administration, beginning with the Arizona U.S. attorney Paul
Charlton. Now we haven’t had the opportunity to have him before
us. But the problem emerged out of his office, and with warnings,
apparently, in his office at that time, that there were real issues
that the ATF — at least his legal counsel raised issues, including
what he called moral objections.
Now Mr. Charlton, we do know — even though we haven’t had the
opportunity to speak with him — was briefed and continued to allow
hundreds of guns to walk across the border to Mexico. The noto-
rious Hernandez case arose during the Bush administration when
the effort of coordination failed and yet the gun walking continued.
Now we come to this administration. When you became Attorney
General in 2009, were you aware that ATF had this long history
of gun walking in its Phoenix office?
Attorney General Holder. No. I didn’t become aware of gun
walking at all until the beginning of 2011.
Ms. Norton. Mr. Attorney General, if every attempt at coordina-
tion — and remember, Mr. Hernandez was never arrested. Those au-
thorities were never — no one was ever taken into custody. But if
every attempt at coordinating fails, do you think the agent should
have stopped authorizing further attempts to coordinate between
Mexico and the United States and allow the gun walking to pro-
ceed?
Attorney General Holder. Do I think they should have allowed
that?
Ms. Norton. Do you think that given the repeated attempts of
failed coordination that the agents should have stopped authorizing
it or simply continued to allow further attempts, even as they saw
149
the attempts of coordination fail with no arrests being made on the
Mexican side?
Attorney General Holder. Yeah. I think both experientially,
based on what you have noted, I think there was no basis for a con-
tinuation of gun walking. But then even conceptually, as I think
I testified before, the notion that you would let guns walk is simply
not something that I think is a sound law enforcement technique.
Ms. Norton. So when does it become gun walking, Mr. Attorney
General?
Attorney General Holder. When you have the ability to arrest
somebody for some firearm transaction that they have engaged in
and you make the determination not to make the arrest, and then
they proceed from that site, and you don’t surveil them, you don’t
take any kind of affirmative action, and you allow that person who
has committed a firearms offense to simply walk away with the
firearm. That, from my perspective, is gun walking. And concep-
tually, experientially, it is simply not a good thing to do.
Ms. Norton. That should have stopped even before even this ad-
ministration took office.
Attorney General Holder. Sure. I think so.
Chairman ISSA. I thank the gentlelady. I would note for the
record that the Attorney General has testified as to Fast and Furi-
ous on November 8th before the Senate, on December 8th before
the House. The other previous testimonies were not on the subject
of Fast and Furious. And he was not briefed and able to answer
it properly during those times. I just wanted to make sure. This is
also the first time before our committee. So Judiciary, quite frank-
ly — and particularly in the House — has not taken the lead the way
this committee has on both sides of the aisle.
Attorney General Holder. If I could just maybe correct the
record
Chairman IssA. Of course.
Attorney General Holder [continuing]. I certainly did speak in
those — the number five or six is, in fact, correct.
Chairman IssA. The times that you were asked, not the times
you were brought to answer questions that were prepared.
Attorney General Holder. Whether it was Senate Appropria-
tions, Senate Judiciary, I was asked questions about Fast and Furi-
ous and answered those questions.
Chairman IsSA. With that, the next gentleman will be the gen-
tleman from Michigan, Mr. Walberg, for 5 minutes.
Mr. Walberg. Thank you, Mr. Chairman. And thank you Mr. At-
torney General, for being here today.
I’m tempted to ask your opinion on former Penn State coach Joe
Paterno. It might be an interesting conversation, but we don’t have
time for that in the questioning. But I would state that Joe Paterno
reported allegations of child molestation to his superiors but did
nothing else because he didn’t want to jeopardize university proce-
dure. Jason Weinstein, a senior official in the criminal division,
knew about gun walking as early as April 2010. After a single
meeting with ATF about it, he then failed to follow up or take ac-
tion. Joe Paterno, a legend in his sport, and yet he was
unceremoniously fired. Weinstein continues on in his current posi-
tion even though Fast and Furious has held deadly consequences.
150
most importantly, to Agent Brian Terry, a proud son of Michigan,
my State.
My question for you is, what’s the difference between the case of
Joe Paterno at Penn State and the Justice Department under your
leadership?
Attorney General Holder. Well, I’m not going to get into the
Paterno case. I will talk about Jason Weinstein. He knew about
wide receiver and he told Mr. Breuer about it. He met with ATF.
He has indicated that he did not know about the tactics, the inap-
propriate tactics, the gun walking tactics involved in Fast and Fu-
rious until later on and didn’t connect those tactics with the ones
that were used in wide receiver and has admitted that what he did
was a mistake and has indicated that he was, you know, that he
failed in not making that connection.
Mr. Walberg. And so he continues on, as do other senior officials
moved around as chessmen on a board with no consequences of a
significant nature at this point in time, no admission, other than
now when brought on the carpet and brought into the public life
that this thing has gone wrong, was set up to go wrong and, frank-
ly, I believe was set up to go wrong in order to deal with Second
Amendment liberties of law-abiding citizens and pushing into a
perception that it was a problem of the Second Amendment as op-
posed to law enforcement. And more importantly, Mr. Attorney
General, your oversight of an agency, of a department, of individual
leaders in that department that have not been held accountable.
Attorney General Holder. Well, with all due respect — and I
mean this with great respect — the notion that this was an oper-
ation set up to do something to impinge upon the Second Amend-
ment rights of my fellow citizens is absurd. The operation that was
put together here was an attempt to stop the flow of guns from the
United States into Mexico, something I think we should all agree
upon.
Mr. Walberg. And it wasn’t effective, was it?
Attorney General Holder. It was not effective. In fact it was
flawed, fundamentally flawed.
Mr. Walberg. Very flawed.
Attorney General Holder. I have said that from day one. But
the notion that somehow or another this was a setup to come up
with measures that would impinge upon Second Amendment rights
is simply not substantiated by the facts. And I think in some
ways — again, with all due respect, I think that’s almost irrespon-
sible.
Mr. Walberg. Well with all due respect, I would concur that
your mention today of the necessity for impinging upon Second
Amendment liberties of law-abiding citizens still further brought
that question up. Let me move on here. An article yesterday by
former CIA director Michael Hayden noted that you “launched a
reckoning of CIA renditions detentions and interrogations of terror-
ists by directing the Justice Department to reopen investigations
closed years before by career prosecutors.” This decision was op-
posed by Leon Panetta and his seven predecessors. The article
notes that you reportedly made the decision without reading de-
tailed memos prepared by those career prosecutors, declining to
pursue further proceedings.
151
And further, Mr. Attorney General, you are well known in this
town for not reading memos. You admitted you failed to read
memos addressed to you in Fast and Furious; you failed to read
memos before the Mark Rich pardon. You failed to read memos or
even the law related to the Arizona immigration law. What does
that say about your leadership and management that you consist-
ently fail to read extremely important papers placed on your desk?
Chairman ISSA. The gentleman will suspend.
As I previously said — although you can certainly talk about your
management style — this hearing is limited to Fast and Furious, so
I would ask that you limit your answers to the management style
as it may relate to Fast and Furious and not to any other cases
unrelated to our investigation.
Mr. Walberg. Thank you, Mr. Chairman.
Attorney General Holder. Well, I disagree with that. Given the
decision to almost engage in character assassination, I will respond
to at least some of that.
I’m the Attorney General of the United States, okay? And when
it comes to deciding what I’m going to investigate, how I’m going
to investigate, I take into account a wide variety of things. The de-
cision I made to open up those CIA matters — and I was an aware
that this was something that was opposed by a great many people.
I read a great deal before I made that determination. I had access
to material that other people who criticized that decision have
never had access to.
Now I have great respect for the people, the men and women of
the CIA who put their lives on the line and who protect this Nation
in a way that many of you don’t, because I see a briefing every day
at 8:30 about the great work that they do. But there were things
done, things that were done during the course of those interroga-
tions that were antithetical to American values, that resulted in
the deaths of certain people and that justified my decision to order
an investigation. That investigation has run its course. We are at
a point where we are about to close those investigations. It would
have been irresponsible for me, given the new information that I
had a chance to review, not to order that investigation.
With regard to your more general point about me reading or not
reading memos, I read those things that are brought to my atten-
tion or things that I think I need to read in order to make appro-
priate decisions. I’m confident that the management style that I
have, the involvement that I have is adequate to allow me to make
appropriate decisions based on facts, based on interpretations of
the law. And I have a good staff that brings to my attention those
things that I need to read.
Chairman IssA. The gentleman’s time has expired. Before I go to
Mr. Tierney, I would like to make — and we are sort of speaking to
your staff to a certain extent — the staff aware of the CRS report
that on numerous occasions. Congress has interviewed line attor-
neys, including in the Rocky Flats investigation, the early 1990’s
under obviously a Republican administration. So I would ask that
your staff review that so that you may correct your statement, that
it never happens.
With that, we go to the gentleman from Massachusetts next, Mr.
Tierney.
152
Mr. Tierney. Thank you, Mr. Chairman. Mr. Attorney General,
indulge me, if you will, on this for a second. This committee’s obli-
gation is to the family of the deceased, to the other law enforce-
ment officers involved, to the citizens of this country. And this com-
mittee is charged with first finding out what happened; and then
once we determine that, making sure we can work on practices so
that it never happens again in a flawed situation like this. Mem-
bers of both parties — and our staff did a great deal of work in de-
termining the facts, and I think the ranlang member has already
gone on a great deal about the number of interviews that staffs of
both parties and the number of documents that they reviewed went
on, and also laid out a number of actions that were recommended
for the future. And I know that you have taken some actions and
the new ATF director has set out some actions as well.
So at this stage, it seems to me we have a couple of alternatives.
We could further explore on how the program of gun walking began
back in 2006; it repeated itself in 2007; it repeated itself again in
2008 and 2009; and it repeated itself again in Fast and Furious.
But to do that, we would need to talk to Mr. Mukasey, I should
think, and the majority is not willing to bring Mr. Mukasey for-
ward.
As far as I know, he is the only Attorney General that had docu-
ments in front of him that even mentioned the programs, or some
of those programs, although that doesn’t indicate that he author-
ized it or even condoned it. But certainly if that alternative of try-
ing to find out more facts about what happened, he would be some-
body I think would be worth talking to, and we have not been
given that opportunity. We could explore reforms, necessarily be-
yond those that you’ve implemented and the ATF director’s imple-
mented and what statutory changes about gun trafficking and
things might be involved. But the committee doesn’t seem — at least
the majority doesn’t seem interested in doing that. Or unfortu-
nately, as we seem intent on doing here at this hearing put by the
majority we could continue to chase what seems to be a political
agenda of trying to find out that somebody in the administration —
you, in particular, somehow had knowledge or authorized or con-
doned this operation.
If that were the case it would seem to me that a good witness
for us to talk to would be Mr. Melson, who was the then-acting
ATF director. Mr. Cummings has asked the chairman to bring Ken-
neth Melson as a witness. Mr. Melson indicated he is willing to
come as a witness. In fact, he even testified or talked, was inter-
viewed in a closed interview with staff from both parties. They
asked him if he had ever approved gun walking. He said he had
not. They asked if he had ever been briefed about gun walking. He
said no. They asked if he was aware if the senior Justice Depart-
ment officials had ever authorized gun walking. He said no.
Surely if the details of Operation Fast and Furious were ap-
proved at the highest levels of the Department of Justice, as has
been accused, then Mr. Melson, the director of the ATF presumably
would have known about it. This is however, what he said in that
interview, “I don’t believe I had knowledge of the specific tactics
used in Fast and Furious until the facts began to be disclosed in
the media.”
153
So Mr. Melson told the committee he never authorized gun walk-
ing, the Justice Department never authorized it. He wasn’t aware
of it in the Fast and Furious operation, and he never briefed the
Attorney General or anyone else at the Department of Justice
about it. I think that’s pretty valuable information if the focus of
this inquiry is going to be who knew what when and where.
This interview with Mr. Melson took place 7 months ago. Chair-
man Issa has refused to let him answer those questions in public
before our Members. We can draw some conclusions of our own as
to why that case’s testimony directly contradicts the assertions that
the operation was approved at the highest levels of the Justice De-
partment.
So that leaves us with only, I guess, to find out whether or not
there were any bad actions by people at higher levels of asking you
yet again, Mr. Attorney General, did Mr. Melson, the director of
ATF, ever raise any issues to your attention about gun walking or
the conduct of Operation Fast and Furious?
Attorney General Holder. No he didn’t.
Mr. Tierney. Do you rely on your component heads to bring sig-
nificant issues within their agencies to your attention?
Attorney General Holder. Sure. That’s one of the responsibil-
ities that they have. And I hope I have the kind of relationship
with them so that they feel free to bring to my attention issues like
that.
Mr. Tierney. Are you disappointed that neither Mr. Melson nor
anyone else at ATF raised concerns about Fast and Furious to your
attention or to anyone else at the Department’s headquarters?
Attorney General Holder. Yeah. I am disappointed not only in
Mr. Melson, but other people within the Department who were
seized with this knowledge and who did not bring it to my atten-
tion and who have admitted they made mistake in not bringing it
to my attention or to the Deputy Attorney General’s attention the
fact that gun walking existed in at least some of these operations.
Mr. Tierney. And have you or has anybody held Mr. Melson ac-
countable for not bringing these issues to your attention?
Attorney General Holder. Well, Mr. Melson made the deter-
mination and we agreed that it would be better for him to leave
ATF to allow ATF to get a fresh start and to allow him to get a
fresh start as well.
Mr. Tierney. Mr. Chairman, at this time, I ask unanimous con-
sent to enter into the record the transcript of the interview by Re-
publican and Democratic staff.
Chairman IsSA. I object. You know that’s grossly inappropriate.
Mr. Tierney. Well, I think, Mr. Chairman, it’s grossly inappro-
priate to have a pertinent witness who is not allowed to come be-
fore this committee and testify. And I thought, since you don’t seem
willing to do that, then maybe we’d go to the next best thing where
both parties had an opportunity to interview Mr. Melson and talk
about issues that seemed to be right at the core of what you are
alleging over and over again.
Chairman IssA. The gentleman’s unanimous consent is not —
okay, I will be even kinder. I reserve.
Now speaking on my reservation, does the gentleman really be-
lieve that that is the right thing to do, to make public an ongoing
154
investigation that includes a number of officials, includes a situa-
tion in which an official has taken the Fifth and left the Justice
Department to make any of those documents publicly available at
this time when, in fact, it is pursuant to our investigation? Does
the gentleman actually believe that?
Mr. Tierney. Mr. Chairman, I withdraw my request at this point
in time. But I hope we’ve made the point here that what is impor-
tant is for you to change your mind hopefully and allow Mr. Melson
to come here and testify in public and answer the questions which
have been the core of the matter there and the allegations that you
continuously make apparently erroneously but refuse to acknowl-
edge.
Chairman IssA. I appreciate the gentleman’s comments. I would
note for the record I have not called for the Attorney General’s res-
ignation. I have not said the Attorney General knew. I certainly
have — and I think many of us are making the point that people
didn’t know that should have known things that, in fact, we are
trying to find out where the failures were made other than the
local level, which we have begun describing in the case of the act-
ing — and it’s in his testimony, obviously, which will not in its en-
tirety made available today. But the acting director, in fact, is cul-
pable for not knowing more of what a director should know or en-
sure that people know that make stoppage.
So I join with the gentleman in saying that, in fact, it does con-
cern me that someone who is supposed to direct over 1,800 individ-
uals did not know that this, in fact, involved gun walking. But re-
member, on February 4 — well after many of these events — the At-
torney General’s office prepared a document, gave it to us which
said we never let guns walk. That is of concern too. And the com-
mittee is not shy about having additional hearings. The Attorney
General made himself available at this date pursuant to a request.
We did not and are not saying this is the culmination or we are
taking him in lieu of less significant
Mr. Tierney. Mr. Melson’s interview was some 7 months ago.
And a direct quote from you, Mr. Chairman, on a television show,
the Roger Hedgecock Show — there was a radio back there — you
said, “ATF people and Justice people are telling us, this goes all
the way to the very top. It goes all the way to the ATF Office of
the Director and obviously goes to the Office of the Attorney Gen-
eral. This is the approved plan that you know is basically at the
highest levels of the Obama appointees.”
If those are allegations that you are going to make, then it would
be important to have Mr. Melson come in here and testify as part
of that instead of blocking his testimony and continuing to make
those assertions which now apparently are obviously not correct.
Chairman IssA. I appreciate the gentleman giving Roger
Hedgecock a plug. The fact is that those allegations were made
with a number of other false allegations. I might note for the
record that we were given statements, allegations that the ATF di-
rector was viewing on closed circuit Internet connection the actual
purchases being made. After receiving testimony and multiple
checks, we discovered that although he inquired about the capa-
bility of viewing these surveillance as they occurred, that no such
event occurred. This often happens in investigations.
155
Mr. Tierney. Well Mr. Chairman I am glad that you recognized
that those comments that you were amplifying at the very least are
false and now mayhe we can move on to the business of deter-
mining what we can do as a government
Mr. Cummings. Mr. Chairman, just to follow up on what you just
said. I know you are reserving, Mr. Chairman.
Chairman ISSA. Actually the gentleman withdrew.
Mr. Tierney. I withdrew.
Mr. Cummings. I was just wondering if there was a way that we
could have a portion of that document that goes to Mr. Melson’s
testimony where he clearly states that he never told the Attorney
General about these tactics in Fast and Furious where he says that
he did not — he, himself, did not know. I mean, the staff worked
together
Chairman IssA. The gentleman from Massachusetts has done a
very good job of making that available, and I certainly
Mr. Cummings. I just want to make sure that the record is com-
plete. The Attorney General has been accused of — some very un-
kind things have been said about him. His reputation hangs in the
balance, and I think that we’ve got Mr. Melson, the former ATF di-
rector, who clearly stated that he never said anything about these
tactics to the Attorney General. And he even said that he didn’t
even know about them himself. I was just wondering if we could
just have that portion of the transcript as a part of the record. I’m
not trying to
Chairman IsSA. I will work with the ranking member to find ap-
propriate portions that seek your concerns that can be made avail-
able. I might note that my side has quoted repeatedly — and this is
why I want to make sure we are fair on both such quotes. My side
has quoted where he said he was sick to his stomach when he read
the wiretaps and discovered what he didn’t know. So although I
think it is inappropriate to release the entire transcript, I will work
with the gentleman. We will hold the record open to make appro-
priate statements that you believe are necessary to make the
record complete. And I will be glad to do that.
Mr. Cummings. Just 30 seconds. What you just said is one of the
reasons why I want to make sure it’s a part of the record. When
Mr. Melson said as he sat at his kitchen table — and I read it 50
million times. And he said his stomach got in knots when he found
out about it, basically his point was that he didn’t know about it
before then.
So if he didn’t know about it, it was impossible for him to tell
the Attorney General about it. And that’s all.
Attorney General Holder. If I could
Chairman IsSA. Well, I’m not going to allow — and I apologize Mr.
Attorney General. I’m not going to allow this to turn into a se-
quence of those because I think both sides could get into various
testimonies. I will work with the gentleman. He has a valid point.
We will now return to regular order.
Mr. Cummings. Thank you, Mr. Chairman.
Chairman IsSA. You’re very welcome.
Attorney General Holder. Could I just say one thing?
Chairman IsSA. The gentleman is recognized.
156
Attorney General Holder. When Mr. Melson indicated that he
became sick to his stomach, he did not — it was not when he was
reading the wiretap applications. He was reading reports of inves-
tigations. And I think that’s an important distinction.
Chairman IssA. I appreciate that.
We now go to the gentlelady who has been waiting patiently from
New York, Ms. Buerkle for 5 minutes.
Ms. Buerkle. Thank you, Mr. Chairman. And thank you Mr.
Holder for being here this morning. I just want to make a couple
of comments to start out because we’ve heard it from the other side
of the aisle and even yourself with regards to this being a Demo-
cratic or a Republican issue, whether this is a, you know, political
game, if this is an election year charade.
I think it’s very important to recognize that you, as the Attorney
General, with all due respect, need to be held accountable, or some-
one does, as to what happened.
Now I’m amazed that of all the issues that face this country, this
is the issue that I hear from my district so frequently about. And,
in fact, today — and I will enter them into the record — I have no
fewer than 30 questions from folks in my district who want to
know what happened, why it happened, and who is going to be
held accountable to us. And I was taken aback just a little Mt with
your response to my colleague, Mr. Walberg, when you sort of de-
clared that I am the Attorney General.
Well, with all due respect, sir, yes, you are, but you are also ac-
countable to not only the folks in my district, but the American
people. And I just want to — if you would indulge me — just play a
recording because most importantly — and as you are well aware of,
we had a hearing here in June with Brian Terry’s family. And in
that hearing, I specifically asked his mother — and we’ll play that
hearing, if you would, please.
[Video shown.]
Ms. Buerkle. So Mr. Attorney General, on behalf of Mr. Heyer,
who is Brian Terry’s cousin and actually the spokesperson for his
mother and his sister, I would ask you, to what lengths has your
investigation into Operation Fast and Furious gone? And will ev-
eryone in that operation that had to deal with those specific weap-
ons be brought up on charges facilitating the murder of Brian
Terry?
Attorney General Holder. Well, we are certainly working now
to — I mean this is an ongoing investigation. It’s actually a very sen-
sitive time. I’m not sure I can talk an awful lot about where the
investigation is. I have indicated that I think we are pretty close
to making some announcements. And we will hold accountable,
seek to hold accountable those people who are responsible for
Agent Terry’s death. With regard to people who were involved in
Operation Fast and Furious, we are endeavoring to find out who
made the determinations to allow guns to walk. I’m not really at
liberty to talk about the weapons that we used in the actual inci-
dent. That goes to ballistics reports, and I don’t think I can com-
ment on that here. That will obviously come out during the course
of the trial. But we will hold accountable people who were involved
in — as I have described, this flawed investigation.
157
And one other thing. I did not mean to imply the comments that
I made there that I should not be held accountable. But I also
think that there’s a certain fairness component to this as well. And
I ought to be held accountable for those things that are within my
area of responsibility. I should be held accountable for things that
are factually correct as opposed to those things that are politically
desired. And I’m more than willing to admit mistakes when I have
made them. But I also think that if we are going to really get
ahead here, if we are really going to make some progress, we need
to put aside the political gotcha games in an election year and
focus on matters that are extremely serious. When one looks at the
death toll in Mexico, when we look at the guns
Ms. Buerkle. Excuse me, sir. My time is ticking away. I just
have one more question. Unlike the chairman, I was one of the
Members of Congress who called for your resignation. I feel that
the Department of Justice — that you are responsible for all of the
activities that fall under your umbrella. And I think that you have
denied knowledge of the program and that accordingly, you should
not be held accountable.
My question to you today is, what more could have possibly gone
wrong that you would have been held accountable? And before you
answer that, I would suggest that the President has been eerily
quiet about coming to your defense. So let me ask it this way: How
many more Border Patrol agents would have had to die as a part
of Operation Fast and Furious for you to take responsibility?
Chairman IssA. The gentlady’s time has expired. The gentleman
may answer, or not.
Attorney General Holder. You know, that’s the kind of thing,
you know, you wonder why you are getting those calls. I mean, peo-
ple will focus on a question as much as an answer. And as a Mem-
ber of Congress, I mean, really — is that the way in which you want
to be seen, you want to be known?
You know, I should be held accountable for — certainly my role in
whatever I did or didn’t do in connection with the supervision of
Fast and Furious. But, yeah. I’m Attorney General of the United
States, and I should also be held accountable and perhaps even
given some credit — imagine that — given some credit for the things
that this Justice Department has done under my leadership,
whether it deals with national security, revitalize antitrust, revi-
talize civil rights enforcement efforts. And so one has to balance all
of these things.
I’m not claiming to be a perfect person or a perfect attorney gen-
eral. I get up every day and try to do the best job that I can. I have
great faith in the people who work in the Department. And you
know, that kind of question I think is, frankly — and again, with re-
spect — I think that’s beneath a Member of Congress.
Chairman IsSA. The gentleman has concluded I think. We now
go to the other gentleman from Massachusetts, Mr. Lynch, for 5
minutes.
Mr. Lynch. Thank you, Mr. Chairman. And I want to thank the
Attorney General for helping the committee with its work. I know
this is your sixth time.
If I could, I would like to try to put the political part of this aside
and really out of respect for Agent Brian Terry and his family and
158
the other 117,000 people who work for you, try to look at some re-
forms that actually might go to the core of what went wrong here.
Now I know you have referred repeatedly to a tactic, the tactic
of gun walking. But really, when you drill down on that, what we
are allowing here — in this case, in Fast and Furious at least, and
in the earlier cases under the Bush administration, basically what
the Department of Justice did was authorize criminal activity to
allow folks that they knew — they knew these 20 dealers were buy-
ing hundreds of guns — heavy arms, shipping them into Mexico.
In my city, in Boston, through the Office of the FBI, through the
confidential informant program, we had folks that were allowed to
commit 19 murders under the care and protection of the FBI. I’ve
got a situation right now that’s in court where another individual,
a confidential informant, has killed at least — alleged to have killed
at least a half dozen people. The problem here is that this tactic
actually authorized — it puts the law enforcement. Federal law en-
forcement in a position of authorizing criminal activity. They be-
come complicit in it. That’s very troubling, especially when it re-
sults in the death of a very brave, courageous agent or to innocent
American civilian citizens.
And what is especially troubling is that I believe that you didn’t
know about it. I believe that you didn’t know about it. But that’s
not a comfort to me. It is unbelievable that either the Phoenix field
office or the Boston office of the FBI can authorize criminal activ-
ity, not just a mere tactic, but a whole strategy of using that out-
side the law, and then having innocent civilians killed.
So I actually think one of the solutions might be for Congress to
pass a law that says, if there are those limited occasions where we
are going to authorize criminal activity to go on in our society
under the cover of law enforcement’s authority, then either your-
self, as the Attorney General, or the director of the FBI or the head
of the ATF has to sign off on it because here, everyone escaped re-
sponsibility because of plausible deniability. They can say, I didn’t
know about it.
Well, that’s troubling. That scares the hell out of me when I
think that there’s just a local office of the ATF or the FBI that is
authorizing criminals to engage in this typed of activity, taking
AK-47s and letting them get smuggled into Mexico, or, you know,
southern California on our side of the border.
What are you prepared to do? Look, I know that’s a blunt instru-
ment, saying that you have to sign off on any of these clandestine
operations where we are allowing people to engage in criminal ac-
tivity that puts the public at risk. What do you propose to do to
make sure we don’t have this “I didn’t know about it” approach or
the “I know nothing” Sergeant Schultz defense for law enforce-
ment’s “I didn’t know about it?” What do you propose, sir?
Attorney General Holder. I think that’s a legitimate question.
I think we don’t want to go too far in this sense in that law en-
forcement will engage in illegal activity in an attempt to solve
crimes. We engage in illegal activity when we are — when we buy
drugs from people who are selling drugs. We engage in illegal ac-
tivity when we pay corrupt public officials money, when we go into
undercover operations. But we have to have that ability. It is an
extremely important law enforcement technique. But I think the
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point that you raise is a good one, and that is, that the approval
to do these kinds of activities can’t rest at the line level. There has
to he supervisory responsibility. And the question is, where do you
draw that line?
It is not realistic for the Attorney General to sign off on every
one of those things. We have mechanisms within the Department
when it comes to undercover operations that rise to a certain level
where an undercover review committee actually has to approve
them. There’s a committee that does that. The reforms that have
been put in place by Todd Jones at the ATF requires greater super-
visory responsibility for approving those things.
But even with all those approvals — as I said before, you know,
letting drugs walk, letting money walk, that’s one thing. But let-
ting guns walk, I simply don’t see — I just don’t see how that’s an
appropriate law enforcement technique. If you balance the poten-
tial gain against the potential harm, the harm is too great to jus-
tify the use of gun walking.
Chairman ISSA. I would ask unanimous consent that the gen-
tleman have an additional 30 seconds.
Mr. Lynch. I thank the gentleman. Where do we draw that line
though? There has to be some accountability here. There has to be.
And again, I go back to the very nature of this tactic. It is putting
law enforcement — and the confidential informant arrangements are
especially troubling. These folks operated for years. We are taking
taxpayer money to pay confidential informants at a very generous
lifestyle, and it seems to be all clandestine. At least in the Boston
office, the higher-ups didn’t know anything about it.
Chairman IsSA. Would the gentleman yield?
Mr. Lynch. Sure.
Chairman IssA. I agree with the gentleman that we need to do
more oversight over the FBI and other entities that have this au-
thority. I also agree with the gentleman that there has to be a con-
gressionally stated level that we are comfortable with that can ap-
prove this, particularly in light of Fast and Furious, recognizing
that cartel members are unindicted and in fact, were part of this
operation that led to Brian Terry’s death. So I join with the gen-
tleman in support of Congress doing oversight and taking that role.
Mr. Lynch. I thank the gentleman, and I yield back the balance
of my time. Thank you, sir.
Chairman IsSA. I thank the gentleman for yielding back.
We now go to the gentleman from Arizona, Mr. Gosar.
Mr. Gosar. Thank you. Attorney General, for coming today.
There is no secret about how I feel, absolutely no secret. And I am
appalled, absolutely appalled. And I am appalled even further
about the discussion today, because if this same thing had occurred
on the east coast, how much more of a ruckus we would have
heard. How much more we would have actually taken into consid-
eration.
I am the only member on this committee that is from Arizona.
Yes, we lost a border agent. But we are further impugned because
these guns are going to show up at crime scenes, particularly in Ar-
izona, from here to whenever, as well as the Mexican government,
and the Mexican people who have lost over 300 people.
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And I think that I am very taken aback by when you said, you
know, we shouldn’t be doing this. We shouldn’t be gun walking.
And everybody knows that that is inappropriate. Well, I tell you
what. That shows me exactly why I am so appalled, because if
there was a doctrine out there that said listen, if you walk guns,
you are going to do time, that is the penalty that should be placed
here, because that is what we are going to have to endure. And I
am finding it very upsetting that Arizona is taking this on the face
and we trivialize what is going on here.
I think we should be able to share all information to find exactly
who exactly authorized this. We talked about in-line, people that
have been moved from Arizona up the line to DOJ, having that dis-
cussion to find out how this came about, because this is in our
backyard. Don’t you agree?
Attorney General Holder. Agree — you have said a lot.
Mr. Gosar. Don’t you agree that we shouldn’t trivialize this.
Attorney General Holder. No, and it has not been trivialized.
This is obviously — at least not by me.
Mr. Gosar. Do you think it is appropriate that we just say don’t
do it. You shouldn’t be doing gun walking. Or do you say it
shouldn’t be done, and if it is done and you are found culpable and
you are a participant in this, that you should be held to the same
standards as the rest of us are?
Attorney General Holder. What I did after I found out about
gun walking was to issue a directive that said this is unacceptable,
don’t do it, and you will be held accountable if, in fact, you do do
it.
Mr. Gosar. So you will agree with me that if they do this, and
they are put before a jury of their peers, that they would do crimi-
nal time?
Attorney General Holder. Well, I don’t know about criminal
time. I mean, one has to look at the facts of a particular case, and
if somebody did something with criminal intent, sure, that would
be appropriate. But if somebody did something with criminal in-
tent. I mean, you have to get past, you know, beyond a reasonable
doubt. There is a whole variety of things
Mr. Gosar. You just can’t slap somebody’s hand on this and just
say don’t do it again. What I am seeing here is it is something in-
appropriate, and that is in Main Street America, we don’t get these
same kind of privileges to make mistakes. And we are dealing with
people’s lives.
Attorney General Holder. Well, you know, we actually do have
a situation in which people who engage in straw purchasing and
in some forms of gun trafficking actually do get slaps on the wrist
and that is why we need a stronger gun trafficking law and we
need greater penalties when it comes to straw purchasing. Because
we have as I think Agent Forcelli described people who essentially
are being charged as if they were speeding. That is unacceptable.
Mr. Gosar. So straw purchasing, so let me ask you with the
FFLs, the Federal firearms licensees, no new regulations on them?
They did everything that they were told to do and then some. They
kept even pounding people saying, this is ungodly. This same guy
is coming in here and we got ATF saying sell guns. Sell the guns.
Something is wrong here. So putting additional restrictions on
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FFLs is not the protocol. It is further disseminating what is going
on and than having a higher cognizance, won’t you say?
Attorney General Holder. I am not sure what additional restric-
tions you are talking about when it comes to FFLs.
Mr. Gosar. Obviously right now, down in Arizona we have fur-
ther paperwork to fill out if you are selling long guns. How did that
come about?
Attorney General Holder. Well, four States, the border States
have been asked if you sell long guns, like AK-47s, more than two
^ns in a 5-day period, that ought to be reported to ATF, which
is what is consistent with what they have to do now when it comes
to the sale of handguns. That is all we have asked. And that is a
nationwide thing that has been in effect, the handgun restriction,
since the 1980’s, I think probably since the Reagan administration.
All we have said is the four States, the four States along with
the border where the greatest amount of trafficking occurs into
Mexico, that you have this additional requirement, and a Federal
judge here in Washington has said that that is appropriate.
Mr. Gosar. I find it interesting that back here on the east coast
dictating west coast. But you know, a hypothetical. So what do you
think the penalty should be for a cabinet member, a sworn officer
of the law, who comes to testify before Congress and knowingly
lies?
Attorney General Holder. Well, hypothetically, there is a per-
jury statute. There is a false statement statute. I don’t know what
the penalty is. It is 10 years. I am not sure. Whatever. We have
something in Title 18 that already answers that question.
Mr. Gosar. Well, I am one of those people that I find it disdain-
ful about how we have conducted business over this. If it were any
other State than Arizona, I think we would have seen different re-
sults and different penalties and different critical people and man-
power put toward this to find this and being much more coopera-
tive, and I am very disturbed by that.
Attorney General Holder. We have talked an awful lot about
during the Republican primary
Chairman IssA. The gentleman’s time has expired. Is there a
pending question you are answering, Mr. Attorney General?
Attorney General Holder. I think I was.
Chairman IssA. Okay, feel free to answer the question.
Attorney General Holder. I was just saying that, you know, the
notion that we are somehow looking at this in a regional way and
that a particular region of the country is not getting the attention
that it deserves or it is not being taken as seriously as it might if
something happened back on the east coast, your reference to a
judge here in Washington, this is an American problem. This is an
American problem. And what I have tried to say is that, you know,
we too often think about these things as border problems, when the
reality is what happens in Arizona, what happens in New Mexico,
California, Texas, will have a direct impact in Chicago, New York,
other parts of California, Washington State, here in Washington,
DC.
Chairman IsSA. I thank the Attorney General. I don’t think there
really is a pending question that that is responsive too. But I ap-
preciate your comment.
162
We now go to the gentleman from Virginia for 5 minutes, Mr.
Connolly.
Mr. Connolly. Thank you, Mr. Chairman, and welcome, Mr. At-
torney General, and thank you for being here and showing such
dignity and honor in the face of some attempts to suggest you are
other than a dignified and honorable Attorney General serving his
country well. And I just think for the record, welcome on Ground-
hog Day. We heard that Punxsutawney Phil saw his shadow, so we
have 6 more weeks, and it is fitting you are here for the sixth time
before Confess with repeated attempts to try to pin something on
you and this President that cannot be pinned, and it is my firm
hope that at some point the majority would actually acquiesce to
the request to have your predecessor Mukasey come here and talk
about Wide Receiver and his knowledge of that program and gun
running.
Mr. Holder, I assume there is a law that specifically forbids the
trafficking of firearms, particularly if that trafficking ends up arm-
ing drug cartels, or if the weapons are subsequently found at crime
scenes. Is that not the case?
Attorney General Holder. We don’t have a Federal trafficking
statute, and that is one of the things that we are working for.
Mr. Connolly. I am sorry. Forgive me for interrupting. We don’t
have such a law?
Attorney General Holder. No. And that is one of the things that
we have been trying to get Congress to consider and to pass.
Mr. Connolly. Well, now, you have appeared before Congress
many times, six on this subject. Has any of the congressional com-
mittees summoning you to testify had a hearing on that law, the
need for such a law?
Attorney General Holder. No.
Mr. Connolly. Despite our concern about deaths and violence
and an operation gone bad, we haven’t had a hearing on trying to
forbid the trafficking of firearms and making it a Federal penalty?
Chairman ISSA. Would the gentleman yield?
Mr. Connolly. I would prefer not to, Mr. Chairman.
Please, Mr. Holder, answer the question.
Attorney General Holder. No, we have not had that hearing. I
have tried to raise it as part of one of the reasons — part the things
that I think we ought to be considering as a means to deal with
this issue, to deal with this problem. There is clearly a need for a
Federal trafficking, a firearms trafficking statute.
Mr. Connolly. Isn’t that interesting that in the majority in this
Congress we haven’t had a hearing on that subject. Well, if there
isn’t a strong penalty for firearms trafficking, surely there is some
kind of harsh penalty for straw purchasers of guns?
Attorney General Holder. I would like to be able to say the an-
swer to that question is yes, but, unfortunately, the answer to that
question is also no. As I indicated before, I go back to him only be-
cause he has great — more experience than I do. Agent Forcelli who
testified previously before this committee, likened the Federal
straw purchasing penalties to a speeding ticket.
Mr. Connolly. At this very committee?
Attorney General Holder. Right. Yes. At this committee, and
that I think is obviously unacceptable.
163
Mr. Connolly. And the testimony of that agent called by this
committee, by the majority in this committee, was actually inter-
rupted and chastised for the nature of his answer because it actu-
ally dared to talk about the need for stricter gun enforcement and
tougher penalties. Is that your recollection, Mr. Attorney General?
Attorney General Holder. I believe Ms. Maloney was asking a
question in that regard, and I don’t know what the technical term
was, but it was ruled out of order or something.
Mr. Connolly. When I was in Mexico on a bipartisan leadership
trip to talk about this and some other difficult topics with the At-
torney General of Mexico at the time, we asked the Attorney Gen-
eral, if there was one thing the United States could do to help you
in your battle against drug cartels in the north of your country, vio-
lence that has gotten unbelievably, unspeakably out of control,
what would it be? And his answer was, reinstate the assault weap-
ons ban as American law. Your view on that?
Attorney General Holder. This administration has consistently
favored the reinstitution of the assault weapons ban. It is some-
thing that we think was useful in the past with regard to the re-
duction that we have seen in crime, and certainly would have a
positive impact on our relationship and the crime situation in Mex-
ico.
Mr. Connolly. Well, surely we have had a hearing on that
though. I mean, you have been up here six times. This is all about
trying to protect that border with Mexico and to try to help Mexico
as well as protect U.S. security of U.S. citizens. Surely, we have at
least had a hearing on that subject, have we not?
Attorney General Holder. Not to my knowledge. Not a hearing
that I participated in.
Mr. Conyers. Really? It makes one wonder what this hearing is
actually all about. I yield back.
Chairman ISSA. Would the gentleman yield?
Mr. Connolly. I certainly would, Mr. Chairman.
Chairman IssA. By the way, we are happen to entertain all sug-
gestions for hearings. I will note that you keep saying six
Mr. Connolly. Reclaiming my time just for a second there, Mr.
Chairman. I am delighted to hear that you are happy to entertain
such requests. I would then formally request that the former Attor-
ney General, Mr. Mukasey, be invited to the committee to testify
about what he knew and when he knew it about the program anal-
ogous to Fast and Furious in the Bush administration.
Chairman IsSA. We will attempt to glean that information. I
don’t know if it will be by personally having somebody come, but
we do intend to glean information from prior administrations as to
the level of coverage, and I will work with the gentleman on that.
I might, though, note that of the six times the Attorney General
has appeared, for example, to the Appropriations Committee, he
may have been asked a question related to Fast and Furious, but
that wasn’t the purpose for which he came.
And I would only note that as far as I can tell, the Department
of Justice has not submitted a request for a Federal firearms law
to Congress. So I know that the gentleman is very concerned about
these laws. Asking Congress to sua sponte come up with ideas for
laws is actually seldom the way the administration would like it.
164
And I might mention to the gentleman that if the Attorney General
and Justice came up with a proposed firearms law, that might be
a good start to answering your concerns.
I yield back.
Mr. Connolly. Mr. Chairman, if you would just indulge, because
I would like to follow up on that, that is a very good point.
Chairman ISSA. I ask unanimous consent the gentleman have an
additional 30 seconds.
Mr. Connolly. I would just take our joint question then if you
would, Mr. Chairman, and ask the Attorney General to comment.
Why hasn’t the administration, in fact, made the request the chair-
man just referred to with respect to toughening gun laws?
Attorney General Holder. Well, we have certainly requested it
in the past. I will be more than glad to submit something for con-
sideration. We would love to work with this committee, the Judici-
ary Committees in both Houses in that regard. I believe that Mrs.
Maloney actually has a bill that I think would be a good starting
point for us. There is something that exists there that would be the
basis for that conversation.
Chairman IssA. Does the President support Mrs. Maloney’s bill?
Attorney General Holder. We would certainly want to work
with her on that bill. I mean, obviously there are going to be some
things we want to work on, but I think that is certainly a good
starting place.
Mr. Cummings. Would the gentleman yield? I know we are out
of time. But I just want to make sure that is my bill and Mrs.
Maloney’s bill.
Attorney General Holder. I am sorry.
Chairman IssA. That will probably help the President like it even
more.
Mr. Cummings. And we welcome your support.
Chairman IsSA. All right. I thank all of the gentlemen and lady.
With that, we go to one of the most experienced members of the
committee, although a freshman, the gentleman from Pennsyl-
vania, Mr. Meehan, for 5 minutes.
Mr. Meehan. Thank you, Mr. Chairman, and thank you, Mr. At-
torney General. I know I sent you a letter some time ago and I ap-
preciate your coming to our committee. Look, I am going to try to
do my best to work as we try to do with the facts that are before
us, as limited as they are based on the discovery. But what I have
been able to glean, as everybody agrees, is the tactics of the ATF
are not to be supported or condoned.
But if you heard testimony that was given from the U.S. attorney
in Arizona, Paul Charlton, in 2007, that he disagreed and approved
of those tactics and declined the request to prosecute the cases of
Wide Receiver, would you dispute that at all?
Attorney General Holder. I am not aware of Mr. Meehan’s — Mr.
Charlton’s testimony.
Mr. Meehan. It is his testimony that he declined to prosecute
those cases. And just so you know, the other facts that I have been
able to glean is that Kevin Carvell, who is a DOJ Criminal Division
gang unit supervisor in September 2009 called it a semi-dormant
investigation, gun trafficking investigation by ATF. And in 2012,
165
Jason Weinstein called it a case from years earlier, which, in my
mind, suggested it was not something which was current.
Attorney General Holder. But Wide Receiver was dormant and
then was brought hack to life.
Mr. Meehan. Well, I want to know why. That is a pretty good
question, because — who is Laura Gwinn?
Attorney General Holder. I don’t — I am not sure. I don’t know.
Mr. Meehan. Well, let me tell you who Laura Gwinn is again,
going back. Apparently Laura Gwinn was an attorney from main
Justice who was sent by Lanny Breuer to prosecute gun cases, and
around 2009, September 2009, she was sent to Arizona to prosecute
gun cases. In her e-mail, September 2, 2009, she sends an e-mail
to Jim Trusty in the U.S. Department of Justice in Washington and
it says “it is my understanding a lot of those guns walked.”
So we had an attorney from your Department sent to Wash-
ington who sends a communication back to mid-level or senior level
people in the criminal department saying it is my understanding,
I am on the scene, guns walked. And I want to know why, when
a former U.S. attorney based on those opinions, declines to pros-
ecute cases because he does not like the procedures of the ATF, and
an attorney who goes and identifies gun walking, why would a sub-
sequent administration send down attorneys and resurrect these
cases for prosecution?
Attorney General Holder. Well, I mean, we want to try to hold
accountable the people who were responsible for crimes that were
committed, and I would guess that people took into account the
techniques that were used in making the determination as to which
cases would, in fact, be prosecuted.
Mr. Meehan. Well, I sure do think that that is correct. And who
do you think the people are who sit there and take into account the
techniques that were used? Those people in ATF that are looking
for the determinations from the Department about what tactics are
appropriate. And what signal does that send when the prior pre-
vious U.S. attorney declines and says those aren’t appropriate tac-
tics, but the new one comes down and says no, we believe that we
are going to prosecute these cases in which those tactics were used.
But this was simultaneous as well, I know, to an effort in 2009
when Lanny Breuer actually went down and discussed the idea of
traveling to Arizona to meet and plan ways to coordinate gun traf-
ficking. So I just wanted to know why that determination was
made.
Let me switch to one other thing, because again, it comes back
to the idea of who knew what and when. Was Fast and Furious an
OSADEF case?
Attorney General Holder. Yes, I think it received an OSADEF
designation.
Mr. Meehan. And, you know, I am holding in hand the U.S. at-
torney manual, and we have all lived with this, and I know you
know it
Attorney General Holder. You have, certainly.
Mr. Meehan. We have spent our time. I look and it says, I am
talking about the places, authority of the U.S. attorney and what
needs to be approved by the Department of Justice. Approval is re-
quired for organized crime strike force cases, of which Fast and Fu-
166
rious was. Every significant action in the investigation and pros-
ecution from case initiation, court-authorized electronic surveil-
lance, witness immunity, witness protection, and other important
events must be approved in advance by the organized crime and
racketeering section, which is in Washington, DC, the last I looked,
correct?
Attorney General Holder. That is correct.
Mr. Meehan. So we have the Department in Washington who is
actually making determinations about the sufficiency of the new in-
vestigations that are taking place, the OSADEF investigations that
are taking place, correct, which became Fast and Furious.
Attorney General Holder. Well, I am not sure exactly — it is one
of the things we have to try to, again, figure out, who exactly
Mr. Meehan. Well, Mr. Holder, I am figuring it out. I am watch-
ing the documents. I am giving you that route.
Attorney General Holder. Well, there is clearly — I understand
the regulation that you have read. Now the question is who actu-
ally made the necessary approvals, who was involved, why did they
do something that might have been contrary, as you say, I don’t
know, to what the previous U.S. attorney did. These are the kinds
of things that I think we are going to find out from the Inspector
General. I have not done a top-to-bottom review yet. I haven’t been
allowed to do that. I can’t do that.
Mr. Meehan. One of the things we know is there are approvals
as well for wiretaps, and in the conclusion of approval for a wire-
tap, we know that we have to put together a document which is
an affidavit from law enforcement, an affidavit in which to be ap-
proved, it has to suggest that all other law enforcement options
with respect to investigative techniques have been exhausted and
are not — so I don’t have access. I would ask, but I suspect you are
not going to let former Federal prosecutor and myself, Mr. Gowdy,
have access to the seven separate affidavits that were included as
part of the wiretap authorizations that were approved by your De-
partment. Would we be allowed to have access to them?
Attorney General Holder. You know, I am not sure what the
history is in that regard
Mr. Meehan. They are sealed. I know they are sealed.
Attorney General Holder. They are sealed. And I don’t know
whether or not as part of our interaction with Congress histori-
cally, the Department has sought unsealing orders in that regard.
I just don’t know.
Mr. Meehan. I would like to know what was in those wiretap af-
fidavits with respect to which we know there needs to be the ar-
ticulation of the investigative steps that were taken. And if I
am
Attorney General Holder. I am sorry, go ahead.
Mr. Meehan. I would like to know if we would have the ability
to be able to review those, and even in some context in which we
could negotiate. The only thing we want to see is the extent to
which there may be references to tactics that were used by ATF
with respect to gun walking.
Attorney General Holder. Well, as you and Mr. Gowdy will
know maybe better than anybody else on the committee, these
167
kinds of applications don’t always go into all of the techniques that
are used in a particular investigation.
Mr. Meehan. But I don’t know that, and I would like to know
that.
Attorney General Holder. I am just saying generally. So that
there is the possibility that a review of the material submitted by
the field in Washington would not contain something that would
say guns were allowed to walk, or however it might be described.
Mr. Meehan. But there is also the possibility that it would, and
what I want to know, because I do know that your authorities
would have from OEO, and it would actually go up higher to Mr.
Weinstein, if I am correct, who would have to review that affidavit.
So it would be for a pretty serious high level guy in the criminal
division that would have in his hands that affidavit if he so choose
to read it.
Attorney General Holder. A Deputy Assistant Attorney General
has to ultimately approve a wiretap before it goes — a wiretap appli-
cation before it goes before a court, and we have tried to put in
place some new measures with regard to OEO and how these
things are handled. But I will, you know, I will look and see what
we have done historically with regard to these wiretap applications
and see how we will proceed, given the request that you have
made.
Mr. Meehan. Thank you. My time has expired.
Chairman ISSA. I thank the gentleman. We now go to the gen-
tleman from Illinois, Mr. Quigley.
Mr. Quigley. Thank you, Mr. Chairman.
Mr. Chairman, as someone who has gone through about 200
trials myself, I know there are a lot of experienced trial attorneys
in this courtroom. I appreciated the novel. Bonfire of the Vanities.
The best line I have read
Chairman IssA. Say that again. Bonfire
Mr. Quigley. Bonfire of the Vanities.
Chairman IsSA. I would ask unanimous consent that the gen-
tleman have 15 more seconds to educate us as to that.
Mr. Quigley. Well, there is a wonderful scene in which Judge
White talks to the district attorney about prosecuting defendants
for opportunistic reasons. He concludes wonderfully by saying, so
go tell your boss, the district attorney. Captain Ahab Weiss, that
I know he is out there looking for the great white defendant, who
Mr. Williams over there is not it.
Much the same is today. We come to the conclusion after nearly
six hearings that I note there are those looking for the perfect case
to embarrass the Attorney General and the President, but after six
hearings, this is not it. I say so respecting and understanding that
this is a great tragedy, a great loss that requires change and ac-
countability. But if it is done in a way with a Hollywood-type per-
sona, it is opportunistic.
Erankly, it took the minority staff to write a pretty good detailed
analysis of what happened and what needs to change. And now,
Mr. Attorney General, it is incumbent upon all of us to make sure
that happens, and as you suggested there is accountability.
But if it is just deflection, we fall into the other movie trap of
the day, which, Mr. Chairman, you referenced, and that is Ground-
168
hog Day. Let’s remember what happened in that movie. The char-
acter Bill Murray lives the same day over and over again until he
reaches his own reality and comes to terms with it.
We do as well. We have to come to terms with the reality that
in this country we let something that is dastardly take place and
it wasn’t corrected fast enough. And we need to make changes. And
while they are started, we still need accountability. But it can’t be
a deflection.
Now, Mr. Attorney General, you mentioned some of the issues,
the lack of a firearms trafficking statute. We talked about the long
arm reporting requirement to a certain extent. You mentioned tes-
timony at a previous hearing from agent Peter Forcelli. His exact
quote, by the way, was “Some people view this as being no more
consequential than doing 65 in a 55.” That was his testimony about
punishment for straw purchases. He also said something else that
is related to this issue and where we go from now on. He said, “I
have less than 100 agents assigned to the entire State of Arizona.
That is 114,000 square miles. So do we have enough resources? So
do we have the resources? No, we don’t. We desperately need
them.”
I also would note toward that end that appropriate funds for ad-
ditional ATF personnel in this fiscal 2012 year. Congress’ appro-
priations for ATF was $57 million below the agency’s modest re-
quest, resulting in increased layoffs and early retirement for crit-
ical personnel. ATF plans to reduce its work force by about 5 per-
cent to comply with these budget constraints, leaving fewer agents
to pursue traffickers and inspect the small handful of dealers who
repeatedly violate these gun laws.
Mr. Attorney General, if you could briefly comment on the re-
sources needed to do this job?
Attorney General Holder. Yes. I think that if we are serious, as
we all say we are about dealing with this problem of guns going
to Mexico, we have to have an ATF agency that is staffed well, that
has the appropriate leadership and that has sufficient resources.
We have asked for, with regard to these teams that ATF puts on
the border funding for 14 of them. We only got funding for nine.
We need more people than we have now in ATF in order for them
to do the job in the way they want. We need a permanent head of
ATF. There is something that comes with a Senate-confirmed head
that is different from somebody who acts in an acting capacity,
even though Todd Jones, I think, is doing a great job.
We need all of these things in order for ATF to be as good as it
can be with regard to the work that it does along the border, and
the decision by whoever to keep this agency not as strong as it pos-
sibly might be is something that I think does a great disservice to
the American people, and certainly to the law enforcement effort
that we all think is important.
Mr. Quigley. Mr. Chairman, my time has expired.
Chairman ISSA. I thank the gentleman. We now go to the gen-
tleman from Tennessee, Mr. DesJarlais. Would the gentleman yield
for 5 seconds?
Mr. DesJarlais. Yes, sir.
Chairman IssA. Mr. Attorney General, I would like to make sure
we make clear, for 2 years, the President didn’t put up a nominee
169
for that position nor did he take advantage of recess appointment.
So I know the gentleman was well-meaning, hut perhaps ill-in-
formed as to the facts related to the director.
Mr. DesJarlais.
Mr. DesJarlais. Mr. Attorney General, thank you for being here.
If we resolve nothing else here today, we made it painfully clear
that you have been here at least six times. I don’t think there is
any question about that. But why, why have we been here six
times and why is it taking so long to get the answers that we need,
and how could we have made this process more simple?
If you will indulge me for a minute, let’s just take a hypothetical
that I come home from work 1 day and my kitchen window is bro-
ken out and my boys are there all day playing baseball and I know
it. Well, you know, I ask them how the window is broken. They
don’t know. There is a bat laying in the driveway, there are gloves
laying on the table, but they are just not going to fess up. So I kind
of think I know what is going on, but we can’t be sure, because
they are not being straight with me.
So maybe my wife is a little uncomfortable and she says, well,
someone could have tried to break in. Maybe we should call the po-
lice and have them come out and investigate to make sure someone
didn’t try to break in. So this process goes on and on, even though
we know that something isn’t right. So, at any rate, I just use that
loose parallel, and I think you know where I am going.
So you are here multiple times, and you opened your statement
with that you are the Attorney General and that you operate under
the highest standards of integrity and professionalism, and that is
exactly what you have done and what you are doing, and I really
have no reason to question that. But when we started asking for
information, and if they could put up the slide about the Stonewall
City, if we look at this, these are some of the things we have asked
for to expedite this process, some of the evidence, if you will, the
number of documents that we have asked be turned over and what
we have, the number of witnesses that we have asked to talk to
and what we have actually gotten.
These are the kind of things that I guess are frustrating for us
as we try to get to the bottom of this for Agent Terry’s family, and
so that these kind of things don’t happen again. Now, you said that
you were notified probably within 24 hours of Agent Terry’s death,
was that what I heard you say? Sir?
Attorney General Holder. I am sorry?
Mr. DesJarlais. You were notified
Attorney General Holder. I was looking at Fortress Holder
there. I was kind of interested. That is not my house, by the way.
Chairman ISSA. Actually, I think it is closer to Disneyland. We
are a little concerned that it looks a little too grand for anything
in our government.
Mr. DesJarlais. Did you say that you were notified about 24
hours after Agent Terry’s death?
Attorney General Holder. I am sorry, yes.
Mr. DesJarlais. And when you were notified, did they mention
the Phoenix project to you?
Attorney General Holder. No.
170
Mr. DesJarlais. You had no knowledge that that death was, in
any way, linked to what went on in Phoenix. There was no mention
made of that?
Attorney General Holder. Well, Phoenix, I am sure there was
some kind of geographic reference. But with regard to Fast and Fu-
rious, I didn’t know about Fast and Furious until later, January,
early February.
Mr. DesJarlais. So there were no bells going off or any concern
about the gun running or anything at that point?
Attorney General Holder. No. None of the people who were told
of the murder were made aware of the tactics.
Mr. DesJarlais. Okay. Let me reference a letter that was dated
February 4th, and I think the author is sitting behind you today.
Assistant Attorney General Ronald Welch.
Attorney General Holder. Maybe he ought to sit here.
Chairman IssA. With all due respect, he has had this hot seat
for real more than you have, Mr. Attorney General.
Mr. DesJarlais. He submitted a letter to the committee that de-
nied that ATF sanctioned or knowingly allowed the sale of assault
weapons and allowed them to be walked, and I think your Depart-
ment had this letter withdrawn, is that correct?
Attorney General Holder. That is correct.
Mr. DesJarlais. How long did it take to withdraw the letter?
Attorney General Holder. It was formally withdrawn in Decem-
ber, December 2nd. Prior to that, there were a number of indica-
tions by me, by Mr. Welch, by Mr. Breuer, that we were not satis-
fied with the assertions that were contained in that February 2nd
letter. But it was formally withdrawn on December 2nd.
Mr. DesJarlais. It wasn’t a deliberate attempt to deceive Con-
gress? The letter?
Attorney General Holder. No. I mean, if you look at the mate-
rials that we made available, the deliberative materials that we
made available, you can see how people were, I think, really strug-
gling to try to get the best information they could to Confess as
quickly as they could, but I think they made a couple of mistakes.
They needed to take more time and they needed to drill down fur-
ther.
Mr. DesJarlais. Inaccurate information.
Attorney General Holder. They didn’t go down to talk to the
line people. They stopped at the supervisory level.
Mr. DesJarlais. Well, it is amazing how quickly 5 minutes goes.
But I guess as a parent, I want my kids to do the right thing, and
I am sure as the Attorney General, you want the people who work
under you to do the right thing. So I guess moving forward, how
do you feel that you can regain the trust of the American people
in light of all that has happened with Fast and Furious?
Attorney General Holder. Well, I will take issue with you again,
respectfully. I am not sure I have lost trust of the American people
with regard to this issue. This has become a political thing. I get
that. That is fine. So there is a certain segment of the American
people, certainly a certain segment of this Congress that has lost
faith in my abilities as a result of what has happened in Fast and
Furious. But I think the way in which to the extent that there are
people who are willing to be persuaded and who have a contrary
171
view now, I think they need to look at the way in which I reacted
to this, the steps that I have taken, the procedures that I have put
in place, the personnel changes I have made, and ultimately what
I am going to do when I have the ability to look at the minority
report, I assume there will be a majority report, the Inspector Gen-
eral’s report, and judge at that point whether or not I have reacted
appropriately to what was a flawed investigation, both in concept
and in execution.
Mr. DesJarlais. And with all due respect, sir
Chairman IssA. The gentleman’s time has expired, so please be
brief.
Mr. DesJarlais. Okay. With all due respect, with what we see
here on your house, not your house, but the letter that was sent
in, what may appear as political appears now somewhat as a cover-
up —
Chairman IssA. The gentleman’s time has expired.
Mr. DesJarlais. And a lot of information here doesn’t seem to
be accurate and I think that is why the number of hearings con-
tinue to go on us, because I don’t think we are getting the full in-
formation. I apologize.
Attorney General Holder. Wait a minute.
Chairman IsSA. If you want to react to something very quickly,
please.
Attorney General Holder. Well, I have heard the magic word
here, “cover-up,” and I want to make clear that there is no attempt
at any sort of cover-up. We have shared huge amounts of informa-
tion. We will continue to share huge amounts of information.
There is a misperception as I think was indicated in the Deputy
Attorney General’s letter that maybe I can clear up now, that we
are not going to be hiding behind any kind of privileges or anything
to not provide this committee with information that it wants. We
are talking about not providing deliberative material, and that is
consistent with what executive branch agencies beyond the Justice
Department always do.
But with regard to things post-February 5th, February 4th, if
there is a relevant request, we will respond to that request. The
only thing we are not talking about responding to is with regard
to deliberative material. That was a great little diagram that you
had up there, inaccurate in some pretty glaring ways, but it is not
up there now.
Mr. DesJarlais. And that is what my boys with the baseball im-
plied as well.
Chairman IssA. I thank the gentleman, and we can have a later
discussion on how many witnesses and how much information and
so on.
For the Attorney General’s edification, and I know Mr. Ron
Weich will help you, we have published two majority interim re-
ports, and hopefully he can bring those to your attention. Addition-
ally, this committee is investigating a number of things post-Feb-
ruary 4th including related to the false response, and we hope that
that will be cleared up once you give us or fail to give us a constitu-
tional basis for withholding.
With that, we now go to the gentleman from Illinois, Mr. Davis
is next in order.
172
Mr. Davis. Thank you very much, Mr. Chairman. I notice that
we have heard the terminology “cover-up” a great deal, not only
during this discussion, but prior to now, and I think there is no
doubt that there is not a single member of this committee who does
not recognize the need for some serious change.
At the outset of this inquiry. Justice Department officials sent a
letter to Senator Grassley denying that gun walking occurred in
Fast and Furious. However, the Department has, since then, said
that the letter contained inaccurate information and that senior
Department officials relied on adamant denials by ATF and the Ar-
izona U.S. Attorney’s Office.
Mr. Attorney General, to your knowledge, did anyone at the De-
partment of Justice headquarters intend to mislead Congress in re-
sponding to Senator Grassley’s inquiry?
Attorney General Holder. No, I don’t believe that. We submitted
inaccurate information, but it was based on attempts to get that
which was accurate, and people simply did not have access to it.
People who we relied on and who we thought were in possession
of the most accurate information were, in fact, not. There was no
intention to deceive, but the information provided was regrettably
inaccurate, and that is why we withdrew the letter.
Mr. Davis. And you have taken action to hold the personnel
within ATF and the U.S. Attorney’s Office accountable for con-
veying inaccurate information to the Department?
Attorney General Holder. We have certainly looked at those
places where personnel changes could be made. Some have been
made. It is possible that others will have to be made. There are re-
ports that are going on. I will wait for those and see what happens,
although I have an independent responsibility, separate and apart
from whatever the Inspector General generates, to make up my
own mind about what kinds of personnel decisions we need to
make, I need to make.
Mr. Davis. The committee has also interviewed a number of — nu-
merous witnesses, involved in compiling and reviewing the re-
sponse to Congress. The Department has also produced more than
1,300 pages of correspondence relating just to the issue of how the
original letter to Senator Grassley came to be drafted. These docu-
ments support the account of senior Department of Justice officials
that they relied on factual assertions from the U.S. Attorney’s Of-
fice in Phoenix and from ATF. Within 2 months of the February
4, 2011 letter to the Senator, Department officials told committee
staff that the letter was unintentionally inaccurate and stated that
the Department would cooperate with the committee’s investiga-
tion. The Department has now produced over 6,000 pages of docu-
ments and made 18 witnesses available for transcribed interviews,
and, of course, you have testified on matters relating to this issue
six times. Is the Department cooperating with Congress?
Attorney General Holder. I think we are. I think that we are
trying to meet the legitimate requests that have been made by this
committee. This is a legitimate hearing. This is a legitimate con-
cern that Congress is raising and I think what we have tried to do
is respond as best we can to the requests that we have made as
quickly as we can while, at the same time, making sure that we
don’t do things that will have a negative impact on our ability to
173
do our jobs, and that is with regard to that small amount of infor-
mation that deals with deliberative materials.
Mr. Davis. What categories of information are being held and
why?
Attorney General Holder. The material being held and I think
things that we are going to have to try to work our ways through
are, as I have described, deliberative materials, where we have
eight people within the Justice Department talking to one another
about how we are going to respond to a congressional request or
a media request. That kind of — that is the kind of material that we
are talking about. We have made available huge amounts of other
material. We are still in the process of processing other things that
we will make available. We are acting in a way that executive
branch agencies have always acted.
Now, you know, again, we can continue to have conversations
about even this deliberative material and see if there are ways in
which we can share it. One of the things I think that we have to
take into account, and I am not sure anybody has ever done this,
we made deliberative material, wholesale deliberative material
available with regard to that February 4th letter, as you say about
1,300 pages of material. I am not sure I know any Attorney Gen-
eral who has ever done that before to that degree, and I thought
it was the appropriate thing, given the inaccuracies that were con-
tained in that letter.
Mr. Davis. Thank you very much. I appreciate, Mr. Chairman,
that we are dealing with Fast and Furious, but I also think we got
to make sure that we are fast and accurate, as accurate as we can
possibly be. I yield back.
Chairman ISSA. I thank the gentleman. I might note for the
record that the delivery of the February 4th related material oc-
curred only after I threatened a criminal referral for its inaccuracy.
It was at that point that we began getting some cooperation, and
not before. With that, we recognize the gentleman
Attorney General Holder. Well, Mr. Chairman, our view is that
we can disagree on this. We think that the provision of that Feb-
ruary 4th material was done voluntarily, not under coercion.
Chairman IsSA. All right. My threat of criminal prosecution isn’t
coercion. It is a fact that we were given false information and it
was subject already to a subpoena. Cooperation subject to a sub-
poena — by this committee’s standards, we asked for things long be-
fore we issued a subpoena. We were told no. We issued a subpoena
and we were at the level of going next before we got there. So I
appreciate that everyone on both sides of the aisle has a different
opinion, but the timeline is undeniable that we have never received
voluntary cooperation until we had elevated it considerably in any
case here. And certainly Senator Grassley would say the same
thing when, in fact, he was told he didn’t have subpoena authority,
he wasn’t the chairman. That is the reason he originally came to
this committee, so we could begin the process of getting what he
was denied in the Senate.
Attorney General Holder. Well, I can say this. I was the one
who made the determination that we were going to release that
February 4th material, the deliberative material, and it was never
brought to my attention that we had the things that you have just
174
said. The decision that I made was based solely on what I felt was
the right thing to do and without any notion in my mind that there
was coercion or — I don’t mean coercion in a negative way — that
there was the threat of criminal prosecution or anything like that.
My determination was made only on what I thought was right,
given the provision, the regrettable provision of inaccurate informa-
tion. Others might have known about that. I did not. And I was
the one who made the call.
Chairman ISSA. I don’t want to belabor this point, but I do want
to make a point. I signed a subpoena October 12th. It was to you.
So the cooperation came after your office in your name as you as
the recipient received a subpoena. I hope that you read the sub-
poenas that come with your name on it.
Attorney General Holder. But the subpoena, we would not have
replied in response to that subpoena, we would not have given you
the deliberative information. That would not have been something
that we would have provided.
Chairman IssA. We are entitled to it and we are not going to de-
bate that any further. Case law is on our side.
With that, we go to the gentleman from South Carolina, another
constitutional officer in this branch of government, for 5 minutes.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Holder, it is provable beyond a reasonable doubt in my judg-
ment that main Justice had actual or constructive knowledge of
gun walking, both in Fast and Furious and beforehand, and I am
going to prove it to you.
March 2010, DOJ, not U.S. Attorney’s Office in Arizona, DOJ as-
signed a prosecutor to Fast and Furious. March 2010, Gary
Grindler, who I believe is your chief of staff, knew about straw pur-
chases in Fast and Furious and seizures in Mexico, and it doesn’t
take a very good prosecutor to ask how weapons got from Phoenix
to Mexico.
July 2010, a memo to you through the acting deputy AG, that
memo specifically mentioned Fast and Furious. It specifically men-
tioned straw purchasers. It specifically mentioned 1,500 firearms
supplied to Mexican drug dealers. That is July 2010, 1,500 fire-
arms.
April 30, 2010, a memo from main Justice employee Weinstein
to Lanny Breuer, “ATF let a bunch of guns walk.” Then the rest
of the email is worrying about the negative press connotations that
may have come from that. Not how to fix the policy, but how to
mitigate negative press consequences.
October 2010, Jason Weinstein and James Trusty swapped
emails, and specifically mentioned gun walking. And, Mr. Attorney
General, that email is so illustrative of our frustration with the no-
tion that main Justice did not know about this. I am assuming that
James Trusty is a main Justice employee, am I correct?
Attorney General Holder. I believe that is correct.
Mr. Gowdy. All right. This is the email, and they are specifically
talking about Fast and Furious, and in fairness, they also mention
Laura’s Tucson case. They say it is a tricky case given the number
of guns that have walked, but it is a significant set of prosecutions.
The email back to that is I am not sure how much grief we are
going to get from gun walking. It may be more like people are fi-
175
nally going to say we went after the people who sent guns down
there.
Now, lay aside the merits of that argument. How can you deny
that people in main Justice knew gun walking was going on before
that February 4th letter was sent to a Member of Congress? That
doesn’t even get into the wiretap applications. That doesn’t get to
the factual predicate that a member of main Justice would have
had to have read — all of this is before February 4th. That whole
series of evidence predates Mr. Weich sending a letter to Congress
denying the tactic.
So my question to you is this: Who participated in the drafting
of the letter?
Attorney General Holder. Well, first, again, you know, this is
going to be one of those rare instances, you are right. There was
knowledge within the Justice Department of gun walking. It was
related to Wide Receiver.
Mr. Gowdy. Mr. Attorney, with respect, I don’t like interrupting
people, but with respect, several of these emails specifically men-
tion Fast and Furious. I am not talking about Wide Receiver. I
would love to have that conversation some other time. These emails
and memos specifically mention Fast and Furious.
Attorney General Holder. They mention Fast and Furious, but
do they mention gun walking and Fast and Furious.
Mr. Gowdy. Yes, they do. That is my point.
Attorney General Holder. I would like to see those. Those I
would like to see.
Mr. Gowdy. We got them from you. I mean, we got them from
main Justice.
Attorney General Holder. Let’s do this: I promised to give you
all some information. I would really like to see a memo that says
gun walking and Fast and Furious. I would like to see that.
Mr. Gowdy. Well, if you are looking for a videotaped confession,
I probably can’t give you that. But what I can give you is an email
from two main Justice employees back and forth specifically men-
tioning Fast and Furious. “It is a tricky case, given the number of
guns that have walked.” I don’t know how it can be any clearer
than that, Mr. Attorney General. And my point is this: The Feb-
ruary 4th letter
Chairman IssA. The gentleman will suspend. In order to get to
the truth, we are going to take a 5-minute recess and have the doc-
uments given to the Attorney General. I have too many people be-
hind him trying to give him instructions on what it was and what
it wasn’t. Nobody leave. Please get the documents to the Attorney
General. Take what time you need. Use my conference room if you
need it.
Attorney General Holder. I can stay here.
Chairman IsSA. A short recess for 5 minutes.
[Recess.]
Chairman IssA. Would everyone take their seats. We are going
to reconvene as soon as the ranking member is back.
As we reconvene, I understand that the Attorney General’s peo-
ple are comfortable with what the document is and the source. I
would ask for an additional 1 minute for the gentleman to go
through, restate the document, the source and so on. This is impor-
176
tant, that all sides know what is being asked, whether there are
assumptions of validity, truth and so on, and testimony that may
accompany it. So, with that, the gentleman from South Carolina
may resume.
Mr. Gowdy. Thank you, Mr. Chairman. And in keeping with my
open file discovery policy, I gave him my documents. They have my
notes on them. I will go back through the list again. And I would
also point out, Mr. Attorney General, there are several memos and
emails I did not include because reasonably, it could be argued that
they dealt with something other than Fast and Furious. Although
keep in mind, my question, what I said I was going to prove is that
DOJ knew Fast and Furious, and beforehand, that gun walking
was a tactic, because the letter Mr. Welch wrote was not specific
with respect to gun walking.
True or false: DOJ assigned a prosecutor to Fast and Furious.
Attorney General Holder. I believe that’s right. There were peo-
ple that went down — one or two. I’m not sure.
Chairman ISSA. The microphone.
Attorney General Holder. I believe that that is right, that there
were people who went down, one or two, I am not sure, who went
down to help with regard to that prosecution, that matter.
Mr. Gowdy. True or false that Mr. Grindler attended a debrief-
ing on Fast and Furious where his own notes indicate the seizure
of weapons in Mexico.
Attorney General Holder. That — if you are talking about de-
briefing, if you are talking about the meeting he had with the folks
from ATF, I guess, in March 2010, 2010
Mr. Gowdy. Yes, sir, it is March, and there is a note in cursive
handwriting, “Fast and Furious,” and there was a map attached to
that of the seizure of weapons in Mexico. And my point was, it
doesn’t take a very good prosecutor to ask how the guns got from
Phoenix to Mexico.
Attorney General Holder. Mr. Grindler has testified and indi-
cated that what happened in that meeting was that he was briefed
on the operation and was told that it was essentially a successful
operation, and no mention of tactics came out of that meeting.
Mr. Gowdy. All right. There was a memo to you through the act-
ing deputy AG from the National Drug Intelligence, I can’t recall
his name because I don’t have my copy of it. Fast and Furious is
mentioned specifically, straw purchasers are mentioned specifically,
and 1,500 firearms are mentioned specifically.
Attorney General Holder. This is what we call a weekly report,
and I have testified about this I don’t know how many times. There
are a number of these that coming from NDIC. And for the record
it is from Michael Walther, who is the Director of the National
Drug Intelligence Center, and these things just talk about what is
going on with regard to operations. Again, there is no mention of
tactics in any of these. There is no indication that inappropriate
tactics are being used in connection with the underlying investiga-
tion, and that is why these things were not brought to my attention
by my staff.
Mr. Gowdy. Well, it mentions 1,500 firearms and it mentioning
straw purchasers. And, Mr. Holder, despite the protestations of
some of your staff behind you that you are being treated unfairly.
177
I never once said that you were aware of it. I said that main Jus-
tice was aware of it. I suspect you didn’t draft the letter on Feb-
ruary 4th. My question is, who participated in the drafting of it?
And I’m out of time, so I will go ahead and ask the second ques-
tion. After that, I would hope perhaps at some point, Mr. Chair-
man, I could ask the rest of the questions I have.
But here of my two questions. Who participated in the drafting
of it? Because the criminal chief head, Lanny Brener, was in Mex-
ico contemporaneous with the drafting of the February 4th letter
advocating gun walking. Get that image, that visual image of a let-
ter being drafted denying gun walking while the criminal chief at
main Justice is in Mexico advocating for gun walking.
Chairman IssA. The gentleman’s time has expired. The Attorney
General may answer.
Attorney General Holder. In terms of who drafted the February
4th letter, that is obvious from the materials we shared from with
you, those 1,300 pages or so. I mean, I don’t — I can’t recall all their
names, but you will really see, I think, virtually everybody, if not
everybody, who was involved at the Justice Department in the cre-
ation of the February 4th letter, so you could review that.
I don’t think it is correct to say that while the letter was being
drafted that Mr. Brener was in Mexico advocating for gun walking.
He was in Mexico. And I think you are talking about a February
2nd email or report, I guess, from the State Department that indi-
cated that what he was talking about was the possibility of a
surveilled delivery of weapons to people who would take them to
the border and an arrest made at the border, and interestingly, on
the Mexican side of the border, because the penalties that exist in
Mexico for gun trafficking, for straw purchasing, are higher than
they are here in the United States.
That is what he was proposing. Not gun walking, but something
very, very different. It was something that was raised, ultimately
never carried out.
Chairman IsSA. I thank the gentleman. I apologize. There is no
additional time at this time. We now go to the gentleman from
Vermont, Mr. Welch, for 5 minutes.
Mr. Welch. Thank you very much, Mr. Chairman.
Two things. Number one, I want to express appreciation for the
hard work of the people of the ATF. This is an incredible challenge
that they have. We lost a revered officer. Officer Terry, in the serv-
ice of his country, and it is because there is a huge problem with
guns going from the southwest into Mexico. In the past 5 years,
94,000 guns recovered in Mexico, over 64,000 are traced to the
United States, and every year, thousands are transported across
the border. You have very few tools at Justice to try to deal with
that. You have spoken about that so I won’t ask you.
But I think it is important for us to ask the question whether
the point of this hearing is to try to do something that is going to
help the men and women of law enforcement deal with the major
problem, or it is going to be something that is going to run into one
dead end after another without any good outcome.
Second, we get in our own way a little bit here with the inves-
tigation because it goes off into many different directions, largely
because we make some allegations that as we investigate them and
178
take up staff time, they don’t go anywhere. And I have great affec-
tion for my chairman, who is a hard-charging man, but in my expe-
rience, sometimes you get ahead of yourself on some of the allega-
tions you make. I will just mention a few.
You had indicated, let me get it, one of your allegations was that,
and I quote, you said that folks made a crisis and they are using
this crisis to somehow take away or limit people’s Second Amend-
ment rights. That this hearing has nothing to do with that, this
whole investigation has nothing to do with that.
Chairman ISSA. Would the gentleman yield?
Mr. Welch. I would be glad to yield.
Chairman IsSA. I will be very brief. When the ATF began asking
and the Justice began asking for additional directly related enforce-
ment, including the idea that every two-rifle purchase in fact build
to a data base that Congress has repeatedly limited in statute on
request, it did seem and does still seem to this Member as though
a crisis created by gun walking and Brian Terry’s death was, in
fact, being partially justified by this new requirement at a very in-
appropriate time, at least the optics of it.
Mr. Welch. I will reclaim my time, but thank you. I would dis-
agree. But some of the unsubstantiated allegations though were,
for instance, the allegations that your office and you made — ac-
cused Mr. Holder of “authorizing every aspect of this.” There is no
shred of evidence to back that up.
Last October, an allegation was made that there was a third gun
because there was an item of evidence marked number 2 and num-
ber 3. Those were two guns. It turned out item of evidence was
number one was not a gun, it was I think a blood sample. So every
time any one of us makes an allegation that is theory and conjec-
ture but not based on any solid foundation, it creates a lot of con-
sternation among the public, takes staff time and ends us into a
blind alley.
Now, the real question has always been what did the Attorney
General know and when did he know it. In the six investigations
that we have had or the six that have been ongoing, the answer
to that is the Attorney General was unaware of this activity at
ATF.
Now, Mr. Gowdy has raised a good question here, and I want to
give you a good chance to answer that. But my understanding
about Mr. Weinstein is that the discussion there was about activi-
ties that were taking place during the Bush administration, not
during this administration, and the fact that this tactic may have
been used in the Bush administration doesn’t mean that you knew
that it was an ongoing tactic that was used in Fast and Furious.
So I want to just give you an opportunity to try to elaborate
whatever answer you want to give to the question that’s been
raised by Mr. Gowdy.
Attorney General Holder. Yeah. The email that I had I guess
from Mr. Gowdy, and I gave it back, is from Jason Weinstein, and
he has indicated that the reference that he makes in there is not
to Fast and Furious but it is to Wide Receiver. He testified that
it is his email.
You know, I think in some ways he’s the best person to deter-
mine what his own words meant. I mean. I’ve looked at it, and I
179
appreciate the chairman giving us the opportunity to look at it over
the course of that couple of minutes. But the email is, as I said,
Jason’s email — Jason Weinstein’s email where he indicated that he
was talking about Wide Receiver and not Fast and Furious.
Mr. Welch. Thank you, Mr. Holder.
I yield back the balance of my time.
Chairman ISSA. I thank the gentleman.
If you will yield, I would like to explain something.
Mr. Welch. I’m out of time. But the chairman, as I understand
it, has some prerogatives.
Chairman IssA. Well, I think in the case of an accusation of a
false statement, I will, briefly.
Brian Terry’s mother and father were told by a law enforcement
official that they believed there was a third gun. The missing num-
ber that was later explained seemed to corroborate it. Ultimately,
though, three people have reported that they were told there was
a third weapon.
Now we don’t know there was or wasn’t. Justice has not con-
firmed whether or not there’s a ballistic match on the two Fast and
Furious weapons there, nor have they confirmed they’re looking for
an additional weapon or an additional shooter.
I take very seriously getting the facts right. The fact is, we report
in a limited basis things which in this case the press was way
ahead of and we said, yes, we’re looking into it. We did — and I will
admit, we did and do get things wrong during an investigation. We
do go down blind alleys regularly. Certainly that’s the case. Today’s
hearing and the 1,300 pages out of 6,000 that were directly related
to a response to a false statement made to us in writing on Feb-
ruary 4th is an example where a lot of time has been spent going
down a false thing.
The gentleman, though, is correct, and this chairman will admit,
during this investigation, for more than a year, there have been
times in which we did not get the information right. So, while cor-
recting you. I’m not going to say we get it all right. Our goal is to
get it all right before we publish; and, hopefully, each of our publi-
cations, majority and minority, is where we make sure we only
state that which we can substantiate with footnotes.
Mr. Welch. Thank you, Mr. Chairman.
Chairman IssA. Thank you.
We now go to the gentleman from Florida, Mr. Ross.
Mr. Ross. Thank you, Mr. Chairman.
Mr. Attorney General, I want to make sure I understand your
testimony today and the facts as well. You’ve indicated today that
you were not aware of any gun-walking at all until you were
briefed in, it looks like, 2011. That would have been January or
February 2011?
Attorney General Holder. Yeah, January, February 2011.
Mr. Ross. And you are specifically speaking of gun-walking, not
just Fast and Furious?
Attorney General Holder. No, I didn’t become aware of Fast and
Furious until about the same time period.
Mr. Ross. So you were not aware of any gun-walking, including
Wide Receiver, prior to the end of January 2011?
180
Attorney General Holder. No. I learned of Wide Receiver, actu-
ally, later on. I became aware of Wide Receiver as we were pre-
paring documents to be submitted to this committee.
Mr. Ross. And without regard to Mr. Weinstein’s memo, which
you were not aware of, so you did not know anything about Wide
Receiver? I just want to make sure that that’s clear.
Attorney General Holder. No.
Mr. Ross. So when you said earlier that you were not aware of
the term Fast and Furious being used, were you aware at the time
of Mr. Terry’s death of any investigation or program that was going
on as a result of his death?
Attorney General Holder. As a result of his death. I certainly
was aware of the fact that there was an investigation into who
killed him. There was a criminal investigation that started Decem-
ber — right at the time of his death, December 14th, 15th. I was
aware of that.
Mr. Ross. And in fact you testified today that you were notified
the date of his death, is that correct?
Attorney General Holder. Yes.
Mr. Ross. And was that by Mr. Wilkinson?
Attorney General Holder. I don’t know. I’m not sure who told
me.
Mr. Ross. If I might refresh your recollection, because, pursuant
to some of the documents that we received Friday evening, we did
receive some emails; and one of which was an email sent on De-
cember 15th. It was an email exchange that began from somebody
to Dennis Burke, your U.S. attorney in Arizona at the time, saying,
our agent has passed away. Dennis Burke then forwarded that to
Monty Wilkinson, who was acting as your deputy chief of staff I be-
lieve at the time.
Attorney General Holder. Deputy chief of staff.
Mr. Ross. On December 15th, at 9:41 a.m., Mr. Burke said: Not
good, 18 miles within. Thereafter, at 10:04 that morning, your dep-
uty chief of staff, Monty Wilkinson, then said in an email to Mr.
Burke: Tragic. I have alerted the AG, the Acting DAG, Lisa, etc.
Would it then be correct to assume that the way you learned of
Brian Terry’s death was from Mr. Wilkinson himself as a result of
his statement that he notified you?
Attorney General Holder. Well, he notified me, but I’m saying
it’s entirely possibly that I knew about it before Monty told me.
Mr. Ross. You have no reason to dispute that Monty told you
about it?
Attorney General Holder. I suppose he did. But I’m just saying
that when it comes to that — when a law enforcement death, espe-
cially involving a Federal law enforcement officer, that’s the kind
of information that gets to me very, very quickly.
Mr. Ross. And it should.
Attorney General Holder. Yes, and from a variety of places.
Mr. Ross. In fact, to follow up on that, in the email exchange
later at 11:15 a.m. That morning, there was another email from
Mr. Wilkinson to Dennis Burke saying, please provide any addi-
tional details as they become available to you, asking the U.S. at-
torney in Arizona, please tell us, Mr. U.S. Attorney, we want to
know more.
181
Later that day, in an email from Mr. Burke, the U.S. attorney
in Arizona, to Mr. Wilkinson, your deputy chief: The guns found in
the desert near the murdered BP officer connect hack to the inves-
tigation we were going to talk about. They were AK-47s purchased
at a Phoenix gun store.
My question to you, Mr. Attorney General, were you aware of
this email exchange? Were you aware of an investigation ongoing
that involved a Phoenix gun store and specifically AK-47s at the
time?
Attorney General Holder. No, I wasn’t. But what’s interesting —
listen to what you just said. He said that we were going to talk
about, we were going to talk about, which implies that they did not
talk about.
Mr. Ross. Not prior to but subsequent to. Subsequent to the
death. Mr. Wilkinson has already told you about Brian Terry’s
death. Now he’s being informed about an investigation involving
the slain officer, involving a gun store in Phoenix. Did that not
raise any sense of awareness? Did it not raise any sense of in-
trigue — if not from Mr. Wilkinson, at least from you — to say, what
investigation then is ongoing?
Attorney General Holder. I was not told about this. I was un-
aware of this. And unless there was some indication that
Mr. Ross. I appreciate that. But you’ve testified today that you
are a hands-on manager.
Attorney General Holder. What I was saying was that, unless
there’s some indication that the tactics that we are so against were
employed there, all we know is that this was something — this was
a tragic event connected to an ongoing investigation.
Mr. Ross. Involving a gun store and an AK-47. What else do we
have to say, involving a cartel?
I mean, come on. From December 15th until the end of January,
you don’t learn about a gun-walking operation ongoing in your De-
partment? And I’m supposed to go home and tell my constituency
that that’s the facts? Mr. Attorney General, I have a hard time be-
lieving that.
And if you are, if you are responsible for those underneath your
direction, I would assume that those underneath your direction
would make sure you are fully informed of all incidents of signifi-
cance, including an ongoing investigation subsequent to an agent’s
death.
Attorney General Holder. What I would say is that, in the ab-
sence of an indication that these inappropriate tactics were used,
you have here a tragic death connected to an ongoing Federal mat-
ter, an ongoing investigation. You know, unfortunately, that hap-
pens all the time, too many times.
What makes this case, this situation unique are the inappro-
priate tactics. And I don’t think there’s any indication that Mr.
Wilkinson or anybody else was aware of these tactics until the Jan-
uary, February timeframe — late January, early February time-
frame.
Mr. Ross. So you made no inquiry as to whether this investiga-
tion involved gun-walking?
Attorney General Holder. I’m sorry?
182
Mr. Ross. You made no inquiry as to the investigation involving
Brian Terry’s death involved gun-walking?
Attorney General Holder. That information was not brought to
my attention, so I would not have
Mr. Ross. But you made no inquiry.
Chairman IssA. The gentleman’s time has expired.
Mr. Ross. I’m not asking if it was brought to your attention. You
yourself made no inquiry with regard to that.
Attorney General Holder. There was no indication. There was
no basis for us to believe that gun-walking was at all a part of any
of this stuff. I didn’t know anything about gun-walking or the use
of that technique until February. And by February the 28th, in
early March, I said, guess what, we’re not doing gun-walking. It
took me a month — or less than a month — to say the gun-walking
was inappropriate. Brought to my attention, fairly rapid response
to say, don’t ever do this again.
Chairman IsSA. I thank the gentleman.
We now go to the gentlelady from California, Ms. Speier, for 5
minutes.
Ms. Speier. Mr. Chairman, thank you.
Over here. Attorney General. Last person on the totem pole, so
to speak.
Chairman IsSA. She will be moving up in future years.
Ms. Speier. Don’t count on it.
In any case, first of all, let me say that I think we can stipulate
for the record that this hideous chapter in the Attorney General’s
Office dating back to 2006 is one that we never want to see re-
peated. But I think it’s important for us to recognize that this has
been going on for a long time; and, but for the death of Agent
Terry, would it still be going on today? And that’s one of the things
that continues to trouble me.
For the record, Mr. Chairman, I would like to ask unanimous
consent to put into the record a memo provided to then Attorney
General Mukasey in November 2007 in which it specified to him,
of particular importance ATF has recently worked jointly with
Mexico on the first-ever attempts to have controlled delivery of
weapons being smuggled into Mexico by a major arms trafficker.
While the first attempts at the controlled delivery have not been
successful, the investigation is ongoing and ATF would like to ex-
pand the possibility of such joint investigations and controlled de-
livery.
Chairman IsSA. I’m more than happy to have that piece of dis-
covery placed in the record. No objection.
Ms. Speier. Thank you.
[The information referred to follows:]
183
MEETING OF THE ATTORNE’i’ GENERAL
M !TH MEXICAN ATTORNEY GENERAL MEDINA MORA
Aitomey General's Conference Room
November 16. 2007
(Friedrich. O'ConDOT/Roih, Swanz)
PURPOSE
Mexican .Allorney General Eduardo .Medina Mcira wishes to meet with \ou to reafilnn
the high importance he places on continuing the close bilalerai law cnibrcenieni
relationship he esuabiished ^^■ith .Attorney General Gonzales. .Attorney General
.Medina Mora's visit coincides with the fall meeting of the USXlexico Senior Law
Enforcement Pienan' (■‘SLEP’'), chaired by DO.I'CRM, which brings together a
number of working groups that focus on US-XIexico law enforcement issues.
background
HOGR HRNDZ 003239
184
|RC-2
G. Aims Trafficking
Mexico has repeatecilv expressed concern regarding the smuggling of weapons from
the US into Mexico, rchich the Govermnent of Mexico asserts has fueled the violence of
Mexican drug cartels. See,, e.g,, "US Guns Behind Cartel Killings in Mexico," Wafkinglon
Pest 10/29/07, ,A01 {noting the 9/24 assassination of a Mexican state police officer, and
an attack on the same day on a federal police office in Tijuana, and stating: "The high-
porvered guns used in both incidents on the evening of Sept. 24 undoubtedly came from
the United States, sav police here [in Mexico], who estimate that f 00 percent of drug-
related killings are committed with smuggled US rveapons,")
In response to these concerns, DOJ's ATF has committed significant resources to
address the issue of gun smuggling into Mexico. ATF has three attaches in Mexico Citty
and tsvo TOY agents in Monterrey. During this past week, more than 30 .ATF agents and
analysts have been meeting at the El Paso Intelligence Center ("EPIC") as part of the
South'west Border Initiative's "Project Gunrunner." ATF's goals are to coordinate Federal
latv enforcement activities on the U.S, side of the border involving gun smuggling, and to
w’ork cooperatively with its counterparts in Mexico to improve information sharing,
assist them in impro^■^ng their training and technological capacity, and increase the
number and qualih’ of firearms trace requests from Mexico, One critical part of this effort
is to for the USG to fund Spanish E-trace, which would allow .Mexican law enforcement
submit firea.rms trace requests to .ATF's National Tracing Center.
- Of particular importance, ATF has recently worked jointh' with Mexico on tlie first-
ever attempt to have a controlled delivery of iveapons being smuggled into Mexico by a
major arms trafficker. While the first attempts at this controlled delivery have not been
successful, the investigation is ongoing, and ATF \voujd like to expand the possibility of
such.joint inv.estigations and controlled deliveries - .since only then will it be possible to
investigate an enttre smuggling network, rather than arresting simply a .single smuggler,
To that end, it is essential that a Mexican vetted unit be assigned to work \vith .ATF in this
regard. ATF's attache in Mexico City has briefed Attorney General Medina Mora on this
attempted controlled delivery', and stressed the importance of such a vetted unit being
assigned.
H. Asset Forfeiturgf Money Laundering
HOGR HRNDZ 003240
185
Ms. Speier. Attorney General, were you ever told about General
Mukasey’s briefing regarding controlled deliveries, another word
for gun-walking?
Attorney General Holder. I didn’t find out about that until late
in this process as we were developing documents to submit to this
committee with regard to operation Wide Receiver. I didn’t know
before that.
Ms. Speier. All right.
This committee is Government Oversight and Reform, so I would
like to spend a couple of minutes on the reform side. Hopefully, we
are not just having these hearings to continue to beat up on what
is an atrocious chapter in our history, but how do we make sure
that it doesn’t happen again? So speak to me about the fact that
we do not have a Federal statute on gun trafficking.
Attorney General Holder. We don’t have a tool that we really
need. We need to have an ability to say that gun trafficking is in-
appropriate, it’s wrong, and there’s a Federal criminal penalty for
it. And a statute can be drawn in such a way that it is respectful
of the Second Amendment rights that all American enjoy. What I’m
talking about are people who are doing things for criminal, illicit
purposes that put the American people at risk and put at risk our
colleagues, our neighbors south of the border, in Mexico.
Ms. Speier. What other things do we need in place to avoid this
kind of activity? From your own testimony, you said that you could
trace 60,000 weapons, but that’s just a small percentage of what’s
really being trafficked from the United States into Mexico.
Attorney General Holder. Well, I think that’s right. Sixty-four
thousand weapons have been traced from the United States to
Mexico. But those are the ones that have been traced. There are
substantially a greater number of guns that have not been traced.
We need to have a statute that will make meaningful what I think
as a crime straw purchasing and make meanin^ul a penalty for
people who engage in straw purchasing to get around the rules
that this Congress enacted and that I am charged with enforcing.
We need to have an ATF head who is confirmed. I’m glad to hear
the chairman say that he would support that.
There are other management changes that we have made and,
as I said before, that are consistent with the minority report; and
I think that you all have done a really good job in making that
list — there are actually a couple that we didn’t think of that I am
looking at that I think we will try to implement as well.
There are a whole variety of things that can be done in a way
that, if we are truly going to put partisan concerns aside, put lob-
bying concerns aside, and have some courage — because it will take
some courage, because this will not be universally approved — we
can really make a difference in the lives of the American people
and protect the lives of law enforcement officers.
Ms. Speier. Have you developed a statute that you could provide
to the committee around penalizing straw purchasers and gun traf-
ficking?
Attorney General Holder. I can check with our legislative af-
fairs folks and see exactly what it is that we have there.
As I indicated before. Congresswoman Maloney and Congress-
man Cummings have actually put something on paper that I think
186
is a good place for us to start, but I can also check and see what
it is that we have and that we can share with this committee.
Ms. Speier. All right. I would appreciate that.
My time has expired.
Chairman ISSA. I thank the gentlelady.
I now ask unanimous consent that discovery documents HOGR
DOJ 005752, 53, and 54 be placed in the record along with the
gentlelady’s documents from earlier, just immediately before. These
show Lanny Breuer lobbying for gun-walking in a coordinated fash-
ion across the border for people to be arrested in Mexico on Feb-
ruary 4.
Without objection, so ordered.
[The information referred to follows:]
187
From:
Sent:
To:
Cc:
Subject:
Attachments:
Garcia, Anthony P (Mexico Ci^) I
Friday, February 04. 2011 3:49 PM
Lurie, Adam
Swartz. Bruce; Blanco, Kenneth; Weinstein, Jason; Warlow, Molly; Rodriguez, Mary;
McMilien, Jerold; Snyder, Christopher A (Mexico Cit y); Wyatt, Arth ur
AAG Breuer visit to Mexico
[Untitled]. pdf
Adam,
Below is a synopsis of Assistant Attorney General (AAG) Lanny Brener's meetings with the Mexican Attorney General’s
Office (PGR), Mexico’s Federal Police (SSP), and the Secretary of Foreign Relations (SRE). Sr, RLA Kevin Sundwall
(OPDAT) will cover the SWB US Attorneys’ Conference.
AAG Breuer met with PGR Attorney General Arturo Chavez Chavez, SSP Secretary Genaro Garcia Luna, and SRE
Undersecretary Julian Ventura on Wednesday. February 2.
Meeting with PGR
A, AG Breuer. Deputy Chief of Mission (DCM) John Feeiey, DAAG Blanco. Kevin Sundwall, and I met with AG Chavez
Chavez, Deputy Attorney Genera! (DAG) Jorge Lara, DAG Marisela Morales, Chief of Staff Enrique Barber, and
international Coordinator Guillermo Vails.
CJ Murder Invcstiaation
HOGR DOJ 005752
AAG Breuer. DCM Feeley, DAAG Bianco, Kevin, and I met with Secretary Garda Luna, Lie. Jose Polo Oleyza {Chief of
Staff), and Lie. Ramon Eduardo Pequeno Garcia (Chief of Counter-Narcotics).
Sharing Evidence
RC-5
UU Pmaram
RC-2
B-traco
RC-2
AAG Breuer, DCM Feeley, Kevin, and I met with Ambassador Julian Ventura. Chief of Staff Enrique Rojo Stein. Director
Genera! for Judicial Affairs Sandra Hernandez, and olhcrs.
US Extradition Requests to Mexico
RC'2
Merida Initiative
RC-2
Public/Press Announcements
RC-2
HOGR DOJ 005753
189
Arms Trafficking
Ventura stated that greater coordination and flow of information would be helpful to combat arms trafficking into
Mexico. Ventura suggested a High Level meeting in ttie ^ing to address the arms trafficking issue. (Please
note ftiat the idea of holding a High Level Meeting in the spring also came up during Secretary Clinton's visit to
Mexico last week).
US Sentencing Guidelines
AAG Breuer told Ventura that there has been a proposed increase in the US Sentencing Guidelines for
stravv purcfTaseTs. AAG Breuer suggestedlhat aletter from tiie SRE or'RJRln support of increased
sentencing guidelines for straw purdiasers may be useful.
Proposed Cross-Border Ooerafion
AAG Breuer suggested allowing straw purchasers cross Into Mexico so SSP can arrest and PGR can
prosecute and convict. Such roordinate^gerations between the US and Mexico may send a strong
message to arms traffickers. |
Accreditation for DOJ Attomevs assianad to Mexico
Please let me know if you have additional questions regarding the meetings.
Tony
Tony Garcia
DOJ Attache
SBU
This email Is UNCLASSIFIED.
3
HOGR DOJ 005754
190
Mr. Cummings. Mr. Chairman, I would just reserve because I
don’t think that accurately describes that document.
Chairman IssA. Well, the document speaks for itself.
Mr. Cummings. He’s not talking about gun-walking. I thought he
was talking about a coordinated effort with the Mexican Govern-
ment to follow those guns and then make a cooperative effort
Chairman IsSA. Which is what
Mr. Cummings. Not letting it just walk but
Chairman IsSA. Right. But the definition of gun-walking which
the minority has chosen to put on Wide Receiver — ^Wide Receiver
was a coordinated effort where they followed to the border the
guns. The problem with Wide Receiver and the reason it had to be
abandoned is that they found that, as it crossed the border, repeat-
edly they lost control of the guns.
The program described here in the email related to Mr. Breuer
is exactly the same program. Now maybe if you do something
enough times you might get it different in the outcome. But the
program, the attempt to follow from the store to the border and
then pass off to Mexican authorities is, in fact. Wide Receiver. That
was that program which differs from Fast and Furious, where in
Fast and Furious, they told people to peel away and they’d find the
guns later.
There is a distinct difference, but there is no difference between
what this document shows and the stated Wide Receiver. The fact
is Lanny Breuer in this document was clearly trying to say, let’s
do Wide Receiver again, but let’s get it right this time.
Mr. Cummings. Mr. Chairman, I reserve. I would like to see the
document.
Chairman IssA. You have the document. This is DOJ 0057-54.
Mr. Cummings. Go ahead.
Chairman IssA. No. You have reserved. I will wait.
Mr. Cummings. Mr. Chairman, again, I think we have a differing
opinions of what gun-walking is. I will withdraw my reservation.
Chairman IssA. I thank the gentleman.
And you are right. We can disagree as to what the document
means. My discussion was what I believe it means. But you are ab-
solutely right. Ms. Speier and myself could both be wrong about
what the document means, but I appreciate your allowing it to be
placed in the record.
I’m going to ask unanimous consent that DOJ 0058-11 and 12
be placed in the record, but I will reserve myself until the minority
has a chance to see it and be comfortable with it.
[The information referred to follows:]
191
From: Cunnir^ham, Patrick (USAA^,
To: Burke, Dennis (USAA^; Cfemens. ^ltey (USAA2): Morrissey, Mike (USAAZ); Scheel, Ann
(USAAZ): Hurley, Enrory Wotrfridge, Angela (USAAZ): Evsns, John (USAAZ) 3; Hernandez,
Rachel (USAAZ); Sherwood, Robert (USAA55 <Cot^ractor>
Sent: 3/10/2011 10:53:32 AM
Subject: RE: Follow Up From Cortference Call
Dennis; I will cal! Bill, Matt, Nate and Doug Colemaa Wa do not want this email circulating, correct? PJC
From: Burke, Dennis (USAAZ)
Sent; Thursday, March 10, 2011 7:35 AM
To; Clemens, Shelley (USAAZ); Cunningham, Patrick (USSiAZ); Morrissey, Mike (USAAZ); Scheel, Ann (USAAZ); Hurley, Emory
(USAAZ); Woolridge, Angela (USAAZ); Evans, John (USA^ 3; Hernandez, Rachel (USAAZ); Sherwood, Robert (USAAZ)
<Contnactor>
Subject: Re: Follow Up From Conference Call
Thx.
From: Clemens, Shelley (USAAZ)
Sent: Thursday, March 10, 2011 09:32 AM
To: Burke, Dennis (USAAZ); Cunningham, Patrick (USAAZ); Morrissey, Mike (USAAZ); Scheel, Ann (USAAZ); Hurley, Emory
(USAAZ); Woolridge, Angela (USAAZ); E\rans, John (USAAZ) 3; Hernandez, Rachel (USAAZ); Sherwood, Robert (USAAZ)
<Contractor>
Subject: RE: Follow Up From Conference OH
Pat,
! am assuming your group wll notify the Phoenix federal agencies. I wil notify our local RAC, ASACs, and DSAC.
Shelley
From: Burke^ Dennis (USAAZ)
Semi Wednesday/ Ma 2011 6:27 PM
To; Cunriinghaiii, Patrick (USAAZ); Morrissey, Mike (USAAZ); Scheel, Ann (USAAZ); Clemens, Shelley (USAAZ); Hurley, Emory
(USAAZ); woolridge, Angela (USAAZ); Evans, John (USAAZ) 3; Hernandez, Rachel (USAAZ); Sherwood, Robert (USAAZ)
<Contractor>
Subject: Fw: Follow Up From Conference Cali
Interesting,
I was not on the call.
From: Cole, James (SMO)
Sent: Wednesday, March 09 , 2011 08:21 PM
To: Moreno, Angel (USATXS); Murphy, John E. (USATXW); Burke, Dennis (USAAZ); Gonzales, Kenneth (USANM); Duffy, Laura
(USACAS)
Subject: Follow Up From Conference Cali
Dear USAs;
HOGR DOJ 005811
192
Thank you for your time this evening, I wanted to send this just to summarize our
telephone conversation and inform those of you who were unable to participate.
First, thank you for the work you do to fight gun trafficking. It is very
important .
As I said on the call, to avoid any potential confusion, I want to reiterate the
Department's policy: We should not design or conduct undercover operations which
include guns crossing the border. If we have knowledge that guns are about to cross
the border, we must take immediate action to stop the firearms from crossing the
border, even if that prematurely terminates or otherwise jeopardizes an
investigation .
We know you have difficult jobs to do and we fully support and appreciate your
efforts to stop the flow of firearms through the apprehension and prosecution of all
responsible parties.
As I said on our call, please make sure the SACs in your districts understand the
policy.
Jim
HOGR DOJ 005812
193
Chairman ISSA. And, with that, we now go to the gentleman from
Texas who has patiently been waiting down in the cheap seats, Mr.
Farenthold.
Mr. Farenthold. Thank you very much. Chairman Issa.
Mr. Attorney General, I want to follow up on something Mr. Ross
said, because I think we’re looking at management and how the
DOJ is managed. I think you told him that you were informed
about Agent Terry’s death but never heard anything back about it
being associated with the guns that walked.
I’m the kind of person — maybe our management styles are dif-
ferent — that if an employee under my charge was killed in the line
of duty, I would want to be briefed almost on a daily basis as to
how that investigation is going. I’m asking again, you didn’t hear
for quite some time that the Fast and Furious guns were involved
in this?
Attorney General Holder. Well, no. That’s correct. I didn’t hear
about that for a while.
I mean, you know, to draw a distinction here — and I’m almost
hesitant to do this — we are talking about a brave law enforcement
officer. Well, it wasn’t a part — that doesn’t matter.
I was brought up to date about, you know, the ongoing investiga-
tion, what we were doing at the Justice Department but did not
hear anything about the connection between that death and the
gun-walking tactics until, as I said, February 2011.
Mr. Farenthold. All right. Well, we’ve been investigating Fast
and Furious for some time. Y’all have been looking at it internally.
You’ve constantly blamed the ATF or the U.S. Attorney’s Office in
Arizona, I think. Mr. Gowdy’s made it clear through some of his
questions that it actually has gone up to Main Justice. But I just
don’t see y’all doing anything.
There were several questions earlier about what you’ve done.
And nobody’s been disciplined. Nobody’s been fired. There hasn’t
even been a letter put in. I don’t think that’s good management,
and I think that’s the reason that many of my colleagues — myself
included — have suggested it might be time for you to resign.
My question is that, knowing what you know about the handling
of Operation Fast and Furious, do you believe you’re capable of
running the top law enforcement agency in this country? And can
you tell the taxpayers that you’re the most qualified person to man-
age the Department of Justice?
Attorney General Holder. First off, let me just say we have not
blamed — I have not blamed the people in Phoenix, either ATF or
the U.S. Attorney’s Office there. I mean, they’re good people down
there. They work hard. And I’m not going to allow that to stand
in the record. I’m not blaming anybody. We want to find out who
in those offices might have been responsible as well as who at Main
Justice is responsible.
Mr. Farenthold. Don’t you think 13 months is a little long to
run that investigation?
Attorney General Holder. You have to understand something. I
don’t have the ability to do a top-to-bottom investigation here be-
cause of the Inspector General’s investigation, and I have to respect
that.
194
Now with regard to my capacities to run this Department, you
know, I’ll let the record speak for itself. People have differing views
in this room about Fast and Furious and my role in it.
Mr. Farenthold. I just have a limited amount of time.
You’ve indicated
Attorney General Holder. You asked a question, I mean, ques-
tioning whether or not I should resign. And I don’t have a chance
to respond to that?
Mr. Farenthold. That’s fine.
Attorney General Holder. Thank you.
So if you are going to judge me and ask me to resign, as you
have and as have some of your colleagues, you know, you’ve asked
a hroad question. And how you judge that, well, you look at every-
thing that I’ve done in this Department for the past 3 years and
you look at the Department and the state that it was in when I
got here — a dispirited Department that had gone through scandals,
that had the traditions of the Department turned on its head. It
had been politicized.
I will stand on what I’ve done with regard to the Criminal Divi-
sion, the Antitrust Division, with regard to the Civil Division and
the fraud money that we’ve brought in, the great work we’ve done
on national security. And if you want to say that I am a person not
qualified to be Attorney General you take that into account as well.
Mr. Farenthold. Well, then why are we withholding some of the
deliberative documents, too? That’s another one of my concerns.
Really, a lot of times here in Washington it’s not what actually
happens that you get hung on. It’s the cover-ups. So I’m concerned
that some of those documents are going to show some of the theo-
ries that have been floated around that maybe some delays were
put on stopping Fast and Furious based on some of the things that
the people on the other side of the aisle are calling for now in addi-
tional and more stricter laws.
I mean, if there was a political purpose to that, I think the Amer-
ican people have a right to know about that. So I would urge you
to release those documents. Let us look at them and let the Amer-
ican people make that decision.
But I’m almost out of time, and I’ve learned from the testimony
here that things tend not to bubble up to your desk very often. I
did want to make sure that you were aware of an operation with
the DEA that has two Houston, Texas, based pilots being detained
in Panama over money laundering. I realize that’s out of the scope
of this investigation. You can choose to comment on it or not. But
I did want to make sure it bubbled up to your level.
And my time has expired.
Chairman ISSA. I thank the gentleman.
Will the gentleman yield?
Mr. Farenthold. Yes.
Chairman IsSA. Just quickly, the minority’s not objecting to the
Cole document from March 10, 2011. So that is placed in the
record.
I thank the gentleman.
[The information referred to follows:]
195
From: Cunnir^ham, Patrick (USAA25
To: Burice, Dennis (USAAZ)r GtemenSi Sheley (USAAZ); Morrissey, Mike (USAAZ); Scheel, Ann
(USAAZ); Huriey. Emory {USAA^rWoolrWge, Ange}af(i^AAZ): Evans, John (USAAZ) 3; Hernandez,
Rachel (USAAZ); Sherwood, Robert (USAAZ) <Coraractor>
Sent: 3/10/2011 10:53:32 AM
Subject: RE; Follow Up From Conference Cal
Denrss: I will call BHI, Matt, Nate and Doug Colemaa We do not want tNs email circulating, correct? PJC
Fiwi; Burke, Dennis (USAAZ)
Sent: Thursday, March 10, 2011 7:35 AM
To: Clemens, Shelley (USAAZ); Cunningham, Patrick (USAAZ); Mom'ssey, Mike (USAAZ); Scheel, Ann (USAAZ); Hurley, Emory
(USAAZ); Wooiridge, Angela (USAAZ); Evans, John (USAAZyS; Hernandez, Rachel (USAAZ); Sherwood, Robert (USAAZ)
<ContraGtor>
Subject: Re: Follow Up From Conference Call
Thx,
From: Clemens, Shelley (USAAZ)
Sent. Thursday, March 10, 2011 09:32 AM
To: Burke, Dennis (USAAZ); Cunningham, Patrick (USAAZ); Morrissey, Mike (USAAZ); Scheel, Ann (USAAZ); Hurley, Emory
(USAAZ); Wooiridge, Angela (USAAZ); Evans, John (USAAZ) 3; Hernandez, Rachel (USAAZ); Sherwood, Robert (USAAZ)
<Contractor>
Subject: RE: Follow Up From Conference Call
Pat.
I am assLUTiing yoir group \mII notify the Phoenix federal agencies. I vwll notify oir local RAC, ASACs, and DSAC.
Shelley
From; Burke» Dennis (USAAZ)
SerttrWedneklay/March 09, 2011 6:27 PM
To; Guriningliam; Patrick (USAAZ); Morrissey, Mike (USAAZ); Scheel, Ann (USAAZ); Clemens, Shelley (USAAZ); Hurley, Emory
(USAAZ); Wooiridge, Angela (USAAZ); Evans, John (USAAZ) 3; Hernandez, Rachel (USAAZ); Sherwooi Robert (USAAZ)
<ContrBCtor>
Subject: Fw: Follow Up From Conference Call
Interesting.
i was not on the call.
Fr€»n: Cole, James (SMO)
Sent: Wednesday, March 09, 2011 08:21 PM
To: Moreno, Angel (USATXS); Murphy, John E. (USATXW); Buri^e, Dennis (USAAZ); Gonzales, Kenneth (USANM); Duffy, Laura
(USACAS)
Subject: Follow Up From Conference Call
Dear USAs:
HOGRDOJ 005811
196
Thank you for your time this evening, I wanted to send this just to summarize our
telephone conversation and inform those of you who were unable to participate.
First, thank you for the work you do to fight gun trafficking. It is very
important.
As I said on the call, to avoid any potential confusion, I want to reiterate the
Department-’s policy: We should not design or conduct undercover operations which
include guns crossing the border. If we have knowledge that guns are about to cross
the border, we must take immediate action to stop the firearms from crossing the
border, even if that prematurely terminates or otherwise jeopardizes an
investigation.
We know you have difficult jobs to do and we fully support and appreciate your
efforts to stop the flow of firearms through the apprehension and prosecution of all
responsible parties.
As I said on our call, please make sure the SACs in your districts understand the
policy.
Jim
HOGR DOJ 005812
197
Chairman ISSA. And with that, we go
Mr. Farenthold. Excuse me. Did you wish to answer? You are
welcome to or not.
Chairman IsSA. The gentleman may respond.
Attorney General Holder. There is a limited amount of informa-
tion I can talk about that.
The DEA leadership has told my staff that the incident you de-
scribed in your letter was not a DEA operation. I can’t respond
much more than that. But DEA can provide your staff a briefing
with regard to that outside of this setting.
Mr. Farenthold. That’s fine. I’m just worried about the pilots.
Attorney General Holder. That’s fine. Sure.
Chairman IssA. I thank the Attorney General. On December 5th,
we actually asked for a briefing on that. We appreciate your com-
mitment to that briefing in an appropriate setting.
Now we go to the very patient gentleman from Missouri, Mr.
Clay.
Mr. Clay. Thank you, Mr. Chairman, and thank you. Attorney
General Holder, for, once again, coming before the committee.
Our job on this committee is oversight. It is to examine the facts
and come to conclusions. People of good faith may disagree. Rea-
sonable people can look at the same evidence and come to differing
conclusions.
In this case, we’re not looking at evidence and then coming to
conclusions. Rather, the majority is not looking at evidence and
coming to conclusions. The majority came to a conclusion before
any facts were examined, before any evidence was produced, before
any witnesses were given the opportunity to testify. And that con-
clusion was that there was a scandal, a scandal that the majority
could exploit for political gain, an Obama administration scandal
that could garner the majority the splashy headlines they promised
when they took control of this committee.
Remember now, this is when the chairman of this committee
promised the American people that he would hold seven hearings
a week times 40 weeks. These plans weren’t reflective of actual evi-
dence, of actual facts already gathered that would determine the
number and pace of hearings. This was at a time when, flush with
victory, the majority began to display the hubris that would be
their hallmark for the last 13 months.
Chairman IsSA. Would the gentleman yield?
Mr. Clay. Not yet. This was at a time when the incoming chair-
man on the committee said that President Obama has been one of
the most corrupt Presidents in modern time. Since then, we have
sat through politicized hearing after politicized hearing and we
have seen the majority level wild accusations against the adminis-
tration with absolutely no basis in fact. We have watched the ma-
jority berate witnesses. We have heard the majority accuse wit-
nesses of lying. We have seen the majority attempt to deny us the
right to call our own witnesses, and we have seen what we see here
once again today.
The majority has been and is accusing the administration, the
Justice Department, the Attorney General of participating in a vast
conspiracy. The chairman has compared the Fast and Furious oper-
ation with Iran-Contra. This was a completely irresponsible com-
198
parison. Iran-Contra was, indeed, a vast conspiracy, one that
reached directly to the Oval Office, and evidence proved that.
It is irresponsible to take that gavel to assume the grave respon-
sibility of leading this committee and to wield the power to sub-
poena, the power to call and examine witnesses, the power to in-
vestigate like a political instrument, solely like a political instru-
ment, to accuse the AG of — no, I won’t repeat the irresponsible
wholly manufactured accusation, but to do so without evidence is
irresponsible.
Now there is evidence Fast and Furious was a fatally flawed op-
eration. We know that from the evidence. We also know from the
evidence that an Attorney General knew about flawed failed gun-
walking operations. We know this from the documents produced by
the Justice Department. However, that was Attorney General
Mukasey in President Bush’s administration.
So we have evidence of knowledge at the highest level of the Jus-
tice Department about a bad, flawed policy. Does the majority call
former Attorney General Mukasey to testify? Does the majority ex-
amine the full history of these operations in a fair and responsible
manner? Does the majority even attempt to avoid the appearance
that this is a politically motivated attack?
I think from the evidence we know the answer to those ques-
tions; and, Mr. Chairman, I will now yield the balance of my time
to the ranking member.
Chairman ISSA. The ranking member has 5 seconds.
Mr. Cummings. Mr. Chairman in light of the latitude that you’ve
given on your side, I would ask for 2 minutes. Unanimous consent.
Chairman IsSA. Any objections?
Without objection, the gentleman from Missouri has an addi-
tional 2 minutes.
Mr. Cummings. Thank you very much.
I’m going to look at this organizational chart. Attorney General,
and I see every single person with immediate supervisory responsi-
bility of Operation Fast and Furious has been removed or reas-
signed.
Let’s look at ATF. Here are the people that have been removed
from their management positions and from any operational roles:
the director, the deputy director, the assistant director, the deputy
assistant director, the special agent in charge, the assistant special
agent in charge, and the group’s supervisor. Is that right?
Attorney General Holder. I can’t see the bottom of the chart,
but I think that’s all accurate.
Mr. Cummings. Similarly, at the U.S. Attorney’s Office in Ari-
zona, all of the key personnel involved in Fast and Furious have
resigned, been removed, or been reassigned: the U.S. attorney, the
criminal chief, the section head, and line prosecutor. Is that right?
Attorney General Holder. I believe that’s all correct as well.
Mr. Cummings. One of the criticisms is that no one has been ac-
tually fired. Can you explain why you are waiting to take final per-
sonnel actions against some of these employees?
Attorney General Holder. Well, I don’t want to single those peo-
ple out, because the universe is actually larger than that. But cer-
tainly one of the things that I’m going to take into consideration
is what we find from the Inspector General report and what factual
199
findings that she makes in addition to the material that I have just
gotten I guess over the past couple of days, the minority report.
I think the chairman’s right. There are a couple of majority re-
ports I should look at as well before I make final determinations.
Mr. Cummings. Would a confirmed director of ATF be able to im-
prove management supervision?
Attorney General Holder. Oh, I don’t think there’s any question
about that.
Again, Todd Jones has done a great job, and he has put in place
great number of reforms and has done a lot of the things that you
are pointing up to there on the ATF side. But I think you need to
have a person with the prestige of a Senate confirmation to really
run an agency in the way that we would like it to be run.
Mr. Cummings. Thank you, Mr. Chairman.
Chairman ISSA. I thank the gentleman, and I thank you for mak-
ing my point that no one in Washington has been held accountable.
And, with that, we go to the gentleman from Pennsylvania, Mr.
Kelly.
Mr. Kelly. Thank you, Mr. Chairman.
Chairman IssA. Another cheap seat. I’m afraid. You will move
up, though.
Mr. Kelly. I hope so.
The real reason we’re here today — and I appreciate your being
here. I know you’ve gone through a lot of questioning. And the fact
that it’s not a political hearing, I understand that. But I’m getting
a little bit confused, because we keep going back to the political
side of it.
To me, this is about trust. And you’re the highest-ranking law
enforcement official in the country. And when the people lose trust
in an agency, that’s a very difficult thing to recover, if you can re-
cover it at all.
And I go back to a couple of quotes, and these are ones that you
will recognize.
One is: “Transparency is the best thing.” That’s from you, by the
way, in January 2009. “For a long time now, there’s been too much
secrecy in this city. Let me say it as simply as I can, transparency
and the rule of law will be the touchstones of this presidency.”
So we always hear this talk about we’re going to be transparent,
we’re going to be clear. And then the only thing that I hear that
I’m clear on is that you were never onboard with any of these
things. No matter what it was, you know what, I never was in-
formed.
And I’m not questioning your management style. I come from an
industry that if you lose somebody’s confidence, it’s very hard to get
it back.
Now we can keep talking about this for a long time. But what
I’m amazed about is that since 2009, 2010, 2011, there is very little
information about what happened. When we go back to 2006 in a
previous administration, we can very clearly demonstrate what
they did and what they did not do.
And what I’m really bothered by is a letter from the Department
of Justice — and we’ve already made reference to it. And this is to
Senator Grassley. This responds to your letters dated January 27,
2011, and January 31, 2011, to Acting Director Kenneth Melson of
200
the Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF, re-
garding Project Gunrunner: We appreciate your strong support for
the Department’s law enforcement. At the outset, the allegation de-
scribed in your January 27th letter that ATF sanctioned or other-
wise knowingly allowed the sale of assault weapons to a straw pur-
chaser who then transported them into Mexico is false. ATF makes
every effort to interdict weapons that have been purchased ille-
gally.
And then on that very same day: Below is a synopsis of Assistant
Attorney General Lanny Brener’s meetings with the Mexican Attor-
ney General’s Office, Mexican Federal Police, and the Secretary of
Foreign Relations.
Now who else was there? AAG Breuer, Deputy Chief of Mission
John Feeley from the State Department, DAAG Blanco, Kevin
Sundwall. All these folks are here, and at the end of it here’s what
they come up with:
AAG Breuer told Ventura that there had been a proposed in-
crease in U.S. sentencings or guidelines for straw purchasers. AAG
Breuer suggests that a letter from the SRE or PGR in support of
increased sentencing guidelines for straw purchasers may be use-
ful. The proposed cross-border operation AAG Breuer suggested al-
lowing straw purchasers cross into Mexico so SSB can arrest and
PGR can convict and prosecute these folks. Such coordinated oper-
ations between the United States and Mexico may send a strong
message to arms traffickers.
And now it is preposterous for me to sit here and listen thatyou,
as the highest law enforcement officer in the country, say, but I
didn’t know. I didn’t know. See, that’s the problem. I just didn’t
know. Had I known, I would have changed it. And had I known
earlier, I wouldn’t have waited until December 2nd of this year to
pull the message that Breuer had sent. I wouldn’t have allowed the
Eebruary 4, 2011, letter to be entered into it.
Don’t you see where the problem is, Mr. Attorney General? It
isn’t that you say I didn’t know or I wasn’t quite aware of it. The
problem is the American public relies on you, sir, to follow all those
guidelines. You are the chief officer.
And then to come before this body and for us then to be accused
of some type of a political agenda, this isn’t a Republican issue or
a Democrat issue. This is a United States of America issue.
So you have your AAG down in Mexico saying, yeah, it’s a good
idea. We’re going to keep doing it. And then you have people back
home saying, you know what, we never did that, and we don’t want
it to go on.
Is there any wonder then the American people have lost trust
and lost faith in this system? Absolutely not. The fact that they
still hang on to a thread of it goes back to what they know the
country was to be in the beginning and what it still can be.
But when you continue to find out that those who are responsible
don’t do their work and at the end of the day they don’t say, you
know, it happened on my watch; it’s my fault. What they say is,
it happened in the previous administration and, doggone it, the
people who were supposed to brief me never briefed me.
I can’t believe that the transition from the last administration to
this administration, there was no briefing? I mean, there may have
201
been — the AGs may have turned, but I betcha the same people
were still on. So to say that we really didn’t know about it to me
is absolutely preposterous, and that’s something that I can’t accept.
If you go back to northwest Pennsylvania, you know what integ-
rity is? It’s saying what you mean and meaning what you say. And
don’t run around the outsides of it. Go right to the middle and tell
people what happened.
You know what I would appreciate you saying? You know what?
I didn’t have the foggiest idea what was going on. I went after the
people that handled it and handled it poorly, and they are no
longer involved.
Chairman IssA. The gentleman’s time has expired.
We go to the gentleman from Ohio, Mr. Kucinich, for 5 minutes.
Mr. Attorney General, we’re going to get you close to 1. We’re
down to about six people left.
Go ahead, Mr. Kucinich.
Mr. Kucinich. Thank you very much, Mr. Chairman, members
of the committee.
I want you to know. Attorney General — I’m sorry I’m late to this
hearing, but my wife and I were at the prayer breakfast this morn-
ing. And I knew this meeting started at 9, and we were still at the
prayer breakfast, and we were praying for you.
Attorney General Holder. I can’t complain about that.
Mr. Kucinich. Well, let me tell you, based on what I’ve seen, I
think my prayers have been answered. Because, frankly, I haven’t
seen anyone make a case about you not performing your duties in
the way that you should, and I want to go over that right now.
You and senior Justice Department officials have repeatedly been
accused of authorizing the gun-walking tactics used in Fast and
Furious. We already have the record about what my chairman has
said. He said, “there’s no question that high-ranking officials at
Justice were briefed and rebriefed, and many of them had direct
contacts in authorizing the program. They now call it a failed pro-
gram when in fact the very concept, the very way they wanted it
to be executed was deadly and dangerous.”
Now none of the 22 witnesses that this committee has inter-
viewed supported that claim. And I want to look at, for the mo-
ment, the Department of Justice organizational chart, which is rel-
evant here.
Of course, you know, the DOJ, you are at the top. ATF reports
to you through the Deputy Attorney General.
The former head of the ATF — and I emphasize the word
“former” — Kenneth Melson told us that the controversial tactics
were never raised to my level. He said he was not aware of gun-
walking and never brought it to the attention of senior DOJ offi-
cials.
Now Mr. Melson’s second in command, William Hoover, also told
the committee staff he did not know of the gun-walking tactics in
Fast and Furious. He said it was his “firm belief that the strategic
and tactical decisions made in this decision were born and raised
in Phoenix.”
Now, Mr. Attorney General, can you corroborate their statements
to the committee? And did the head of ATF or his deputy ever
warn you that gun-walking was occurring?
202
Attorney General Holder. No, I never got that from either Mr.
Melson or from Mr. Hoover.
Mr. Kucinich. Well, I want to go back over this chart again, be-
cause it’s really important for Members to have an understanding
here.
You’ve got the U.S. attorney in Arizona, the ATF — the ATF, Mr.
Hoover, Mr. Melson. ATF didn’t report anything to the Deputy At-
torney General. The U.S. attorney for the district of Arizona didn’t
put any information through to the Deputy Attorney General. So
what I want to know is, all of this talk about resignation, we’re
really devaluing the whole concept of asking a top-level official to
resign when you haven’t reached the level of proof that something
was right on his desk. No one’s proved that at all. But we keep
talking about resignation.
If we cheapen this whole idea of just — you don’t like someone,
you ask them to resign. You don’t like an administration, you ask
people to quit. You cheapen that idea. It makes this whole com-
mittee process less significant.
And I want this committee to be important. I chose to be on this
committee when I first came to Congress because government over-
sight is a very important function. I want to support my chair’s call
for this hearing, even though it’s the sixth hearing. You must feel
like Tom Hanks in the movie Groundhog Day because we keep
coming to the same point. But you know what? You have an obliga-
tion to come to us, nevertheless.
So look at that chart. Hold that up again, please. All this infor-
mation, all these assertions, they never got to the Attorney Gen-
eral. Now why? Whether you like him or not, you’ve got to be able
to make the case, and the case has not been made here that the
Attorney General, Eric Holder, was in any way derelict in his du-
ties. And those on the other side of the aisle know me well enough
that if I thought that he was I wouldn’t hesitate to say it.
So I think that we’ve got to be very careful here with people’s
reputations, because reputations take a lifetime to build. They can’t
just be trashed in a minute without facts. After a while, this is
starting to sound like Alice in Wonderland or Through the Looking
Glass, where you’ve got the queen saying, sentence first, verdict
afterwards.
The sentence is resignation, resign. But we haven’t made a fact
pattern that would suggest that we should have that conclusion
raised to the level of the President having to take the action be-
cause you serve at the pleasure of the President.
So I just want to say, whatever disagreements that we may have
on certain policies, I don’t see anything that’s been produced here
today that should cause you to have to stop serving the people of
the United States of America. And I just want that on the record,
haven’t seen the facts that would show otherwise.
Thank you.
Chairman ISSA. I thank the gentleman.
We now go to the gentleman from Idaho, Mr. Labrador, for 5
minutes.
Mr. Labrador. Mr. Chairman, thank you.
203
I’m glad that the minority has made a point that I’ve heen trying
to make for a long time: Government is too big and has too many
layers of bureaucracy.
But I’m one of the first people who asked for your resignation,
and I did it after thinking about it for a long time. And in my
statement when I asked for your resignation I said that, in your
testimony before Congress, you either lied or you were grossly in-
competent in your actions when it came to finding out about Fast
and Furious and your handling of this matter.
The reason we keep bringing you back to Congress is because we
want to know what you knew and when you knew it. It’s a simple
question. But the problem is that, even though you have testified
six times up here on this matter on differing occasions, your story
continues to evolve and continues to change. In fact, today your
story changed a little bit.
So let’s talk about the facts. Everybody wants the facts. So let’s
talk about the facts here.
On May 2011, you said in the Senate Judiciary that you first
heard about Fast and Furious a few weeks ago. In November 2011,
you said that a few weeks was inaccurate and that you should have
said a couple of months. Emails released on January 28th show
that you were informed by your deputy chief of staff of Agent Ter-
ry’s death; and you just testified today that, yes, that is correct, on
December 15, 2011.
And this is what I am trying to get to right here. On that same
day — and it’s already been shown — your deputy chief of staff
learned that the guns used to kill Agent Terry were from East and
Eurious. So what you want us to believe is that you were told about
the death of Agent Terry but you chose not to ask any followup
questions on that same day about what caused the death of Agent
Terry and that, in fact, you didn’t learn about the connection be-
tween the death of Agent Terry and East and Eurious until a cou-
ple of months later.
That’s what you want us to believe. And that’s fine. That may
be the truth. But you can continue to come to Congress — that may
be the truth. That’s fine. I don’t have a problem with it. You con-
tinue to come to Congress unprepared. Don’t you agree that this is
a pattern that you have of dealing with difficult questions and em-
barrassing issues in your office, continuing to come to Congress un-
prepared?
Attorney General Holder. I think it’s very interesting what you
just said: That may be the truth. What I said may be the truth.
Mr. Labrador. Yeah, it may be the truth. I’m not disputing it.
I’m saying, but you continue to come to Congress unprepared.
Wouldn’t you admit that you continue to come to Congress unpre-
pared when you have to testify? Where you have to change your
statements, you have to withdraw memos from your office, isn’t
that a fact?
Attorney General Holder. No.
Mr. Labrador. Okay. Let’s look at that. Let’s look at the facts.
If we could go to the slides, please.
When you came to Congress on Eebruary 14, 2001, you were
being asked about Mr. Mark Rich’s pardon. It says, “Mr. Rich’s
204
name was unfamiliar to me. I had gained only a passing familiarity
with the underlying facts of the Rich case.”
Go to the next slide. “I did not acquaint myself with his record.”
Let’s go to the next slide. “I never actually saw that letter.”
There’s a pattern here that we continue to hear in your testi-
mony.
Let’s go to the next slide. “You’re right.”
Mr. Cummings. Mr. Chairman, you said at the beginning that
this would he limited to Fast and Furious; and here we are — I’m
seeing something up there from 2001.
Mr. Labrador. I’m just showing a pattern of behavior.
Mr. Cummings. We’ve honored that. And I have been very strict
with my people on this side to stay within the parameters that the
chairman set. And, as a matter of fact, I thought we’ve done a pret-
ty good job so far.
Chairman ISSA. The gentleman will suspend.
I’m going to limit what he can do to anything that he wants to
say related to management style. And the Attorney General does
not have to answer any questions. I don’t actually see a question
here.
I have heard time and time again people talking about gun con-
trol and the need for it and a number of other items. Expressing
an opinion within the 5 minutes by a Member of Congress is some-
thing I have limited authority. The gentleman has only 5 minutes.
I do not expect the Attorney General to answer, although in de-
fending himself in this case he may choose to. And I would caution
the gentleman from Idaho to get to the management question
quickly because this is about Fast and Furious.
Mr. Cummings. Thank you, Mr. Chairman.
Mr. Labrador. Okay.
Next slide. “You’re right. I didn’t have the ability to look at all
the materials.”
Next slide, please. “I have not had a chance — ” on May 13, 2010,
when you were testifying about Fast and Furious, “I’ve not had a
chance to. I have glanced at it. I have not read it.”
Next slide, please. “I have no recollection of knowing about Fast
and Furious” — on October 7, 2011.
Next slide, please. On October 7, 2011: “On a weekly basis, my
office typically receives over 100 pages and weekly reports that are
provided.”
Next slide, please. “I certainly never knew about the tactics em-
ployed in the operation.”
Next slide, please — and this is on February 14, 2001: “And I
think the one thing that would have changed this whole thing is
if I had said to the person on my staff, what’s the status of the
Rich matter?”
I believe that’s what would have changed, and we would have
avoided the six hearings that we have had about this matter, is if
you would have just asked a simple question of your staff before
you came to testify in Congress: What did we know about Fast and
Furious, and when did we know it?
You failed to do that. You failed to do that under the Mark Rich
investigation, and you failed to do it on this case, and this is why
we continue to have these hearings.
205
Mr. Attorney General, I believe the American people deserve bet-
ter. I believe that the American people deserve to have an Attorney
General that they can trust. And for that reason, I have asked for
your resignation. And I believe that, because you have been grossly
incompetent in the way that you have prepared before coming to
Congress, I think you should resign.
Thank you very much.
Ms. Norton. Mr. Chairman, I just want to note for the record,
this gentleman could have had a whole pattern that begins with
Fast and Furious, but he insisted
Chairman IssA. Does the gentlelady state a point of order?
Ms. Norton. It was a violation of the rules you yourself, Mr.
Chairman, set
Chairman IssA. Madam Norton, the rules of the House severely
limit my ability to impede your 5 minutes of opinion or his 5 min-
utes of opinion. I have cautioned Members. I have made it very
clear the witness will not be expected to answer any questions that
are not on the narrow subject of Fast and Furious.
Staff will show you the rules that limit how much I can stop
Ms. Norton. Mr. Chairman, if I may say, it seems to me that
that interpretation of the rule was clearly not before us before. And
I am going to have to ask, sure, if it’s the right — it has been my
view all along that a Member may ask about what time it is on
the Moon in her 5 minutes. I never had a chairman before try to
keep me from using my First Amendment rights. But since that
had been your rule and this isn’t the first time you have invoked
it, I tried to honor it.
Chairman IsSA. I thank the gentlelady for her comment.
I have the ability to limit the scope of a hearing. I’ve tried to pro-
tect the Attorney General from answering questions which were
not within the scope of his preparation. I respect the gentlelady’s
right to use her 5 minutes to state opinions, and I have never
stopped somebody from it, although I have cautioned.
It is the intent of this committee to keep this from being any-
thing other than a legitimate investigation as to Fast and Furious
and conditions that occurred around the investigation of a number
of committees. So I appreciate the gentlelady’s comment and would
recognize for 10 seconds the gentleman from Ohio.
Mr. Kucinich. I just want to correct the record. It was sug-
gesting that it was Bill Murray, not Tom Hanks, in Groundhog
Day. So I just want to make sure that, you know, I thought that
you may have felt like Bill Murray in Groundhog Day, not Tom
Hanks.
Chairman IsSA. I thank the gentleman. And, for the record, it
was 38 days in a row in which that repeated itself for Groundhog
Day.
Attorney General Holder. Mr. Chairman, if I could just say one
thing in response to Mr. Labrador.
Chairman IssA. Of course.
Attorney General Holder. That was among the worst things I
think I’ve ever seen in Congress. You took a whole series of state-
ments out of context, with no context
Mr. Labrador. With all due respect, the worst thing I’ve ever
seen
206
Chairman IssA. The gentleman’s time has expired.
Attorney General Holder. And, you know, the Mark Rich thing
was considered in my confirmation. We talked about it then. There
are a whole bunch of things that I could say about what you just
did. And maybe this is the way you do things in Idaho — or wher-
ever you are from.
But understand something. I’m proud of the work I’ve done as
Attorney General of the United States. And looked at fairly I think
that I’ve done a pretty good job. Have I been perfect? No. Have I
made mistakes? Yes. Do I treat the members of this committee
with respect? I always hope that I do.
And what you have just done is, if nothing else, disrespectful.
And if you don’t like me, that’s one thing. But you should respect
the fact that I hold an office that is deserving of respect.
And, you know, maybe you are new to this committee. I don’t
know. I don’t know how long you have been here. But my hope
would be that, you know, we can get beyond that kind of inter-
action, that kind of treatment of a witness, whether it’s me or
somebody else. Because I think in some ways what you did was
fundamentally unfair, just not right.
Chairman IsSA. I thank the gentleman.
We now go to the senior member of the committee from Pennsyl-
vania, Mr. Platts.
Mr. Platts. Thank you, Mr. Chairman. I certainly appreciate
your efforts on this important issue.
Mr. Attorney General, I guess first I’d just comment, most of my
line of questions or questions have been addressed, asked, and an-
swered, and I am not going to repeat what others have already ad-
dressed.
To the last exchanges, I guess I have two comments:
For the most part, I agree with what you just said and consider
the gentleman from Idaho a friend and don’t share the approach
in this instance that he took. And I think your points of a reminder
of civility are important.
Along with that, I also share the frustration I think that’s com-
ing through in his presentation or others on both sides of the aisle
that what this is all about is a courageous American who died in
the line of service to this country and that the actions of others in
service to this country may have played a role because of mis-
management of a program or outrageous conduct relating to gun
trafficking and that we stay focused on that.
The frustration is that, apparently, the Inspector General has
thousands of pages of documents that this committee, in trying to
do legitimate oversight, has not been privy to; and the sooner this
committee on both sides of the aisle have access to the same infor-
mation, the sooner the efforts of this committee can be achieved in
a nonpartisan, just good government fashion.
So I think we all need to keep the focus. This is about how do
we make sure that the death of a servant of this Nation never is
repeated in the circumstances that we see in here.
So with my questions being asked and answered. I’m going to
yield. I know the gentleman from South Carolina has something he
didn’t get to finish up. So I am going to yield him the balance of
my time.
207
Mr. Gowdy. I thank the gentleman from Pennsylvania.
I just want to circle back, Mr. Attorney General, with respect to
the October 12, 2010, email, Mr. Weinstein and Mr. Trusty. And
I am happy to provide you a copy if you do not have one.
You would agree with me that Fast and Furious is mentioned
specifically in that email exchange?
Could I ask that the clock be tolled, Mr. Chairman, while
Chairman IssA. We will suspend, and we’ll give him back the
document again.
Attorney General Holder. I have it in front of me. This is Octo-
ber 14th, October 17th, and October 18th.
Mr. Gowdy. That’s correct. If you need time to familiarize your-
self with it, take all the time you want.
Attorney General Holder. That’s fine. No, I’m okay.
Mr. Gowdy. Would you agree with me that Fast and Furious is
mentioned specifically in that email exchange?
Attorney General Holder. Yeah. I guess this is the October 17th
from Jason Weinstein to James Trusty.
Mr. Gowdy. And both of those gentlemen are Main Justice em-
ployees, correct?
Attorney General Holder. That’s right.
Mr. Gowdy. And you would agree with me that gun-walking is
mentioned specifically, correct?
Attorney General Holder. Yes. In the second line. Number of
guns that have walked.
Mr. Gowdy. Yes, sir. And it is actually mentioned in both the ex-
changes, guns that have walked and then somebody says gun-walk-
ing. So that’s two references to it.
Now can you find the phrase “Wide Receiver” anywhere in that
email?
Attorney General Holder. I can’t see this very well, but I’m just
going to assume that, given the tenor of your question, that the
term Wide Receiver does not appear in here. But Mr. Weinstein
testified that when he was talking about a tricky case he was refer-
ring to Wide Receiver in the Sunday, October 17th, email.
Mr. Gowdy. And I can’t speak to that, Mr. Attorney General. My
point is this: Leading up to February 4th, a letter was being draft-
ed — and I’m much more concerned with the name at the top of that
letter than I am the name at the bottom. The name Department
of Justice means something to me. The name at the bottom of it,
not so much.
While that letter was being drafted, there are people in Main
Justice who knew the body of that letter was incorrect, factually in-
correct. And while that letter was being drafted, the criminal chief
Lanny Breuer was in Mexico talking about gun-walking.
Do you know whether or not he alerted our Mexican counterparts
that Fast and Furious was something that they needed to be pre-
pared to deal with because of the number of weapons? Did he at
least mention to them, be alerted; a lot of weapons went down
there; a lot of your civilians are going to be killed?
Attorney General Holder. Well, first I would say yes, there were
people at main Justice who did have that knowledge of Wide Re-
ceiver and who admitted they did not make the connection between
Wide Receiver and Fast and Furious, and that should have hap-
208
pened, and that could changed the February 4th letter. Lanny
Brener was not down there talking about gun walking as we have
used that term during the course of these last 4 hours or so when
he was dealing with the people in Mexico.
And I don’t remember the third question
Mr. Gowdy. Well, I actually don’t like interrupting witnesses,
but I am almost out of time. I am going to read a summary. And
this isn’t my summary. This is from a DOJ attache named Tony
Garcia. The summary reads, “Mr. Brener suggested allowing straw
purchasers crossing into Mexico so Mexican police can arrest and
Mexican prosecutors can prosecute and convict.” Mr. Garcia then
wrote a summary saying what a horrible idea that was for the very
reasons we have been talking about for the last hours, that people
were going to die and weapons were going to get away from us.
So my time is out. I just want to ask one more question.
Chairman ISSA. Very, very briefly.
Mr. Gowdy. Very briefly. Has there been discussion at main Jus-
tice of either a grant of immunity to Mr. Cunningham so we can
know what it is that he feels the need to invoke his Fifth Amend-
ment right to not say? Have you discussed granting him immunity,
and has there been a conversation by calling for a special pros-
ecutor who may want to issue that grant of immunity?
Attorney General Holder. We have not discussed immunity or
a special prosecutor. I think that would be for you-all to ask us, if
that is something you want to have considered. I will say I don’t
know exactly why he invoked his Fifth Amendment privilege, but
I can say that in the preparation of that February 4th letter that
he was involved in, I don’t have any basis to believe that he know-
ingly provided with us any false information. But, again, I don’t
know why he invoked his privilege. He has a lawyer from a very
good law firm here in D.C., and I am not sure why he did that.
Chairman IssA. The gentleman’s time has expired.
Mr. Cummings. Mr. Chairman, just 5 seconds. I just want to say
to Mr. Gowdy, we have answered all your questions that you asked
about Weinstein in our report, and it comes from documents that
were during the testimony and before our staffs.
Chairman IsSA. I thank the gentleman. We now go to the gen-
tleman from Oklahoma, Mr. Lankford.
Mr. Lankford. Mr. Attorney General, thank you for being here,
your testimony. It is a long day and you dealt with this topic a lot.
I know you also did not want to see the death of Brian Terry. None
of us did. This was a horrible incident that we are dealing with a
lot of consequences of over time because we want to make sure it
never happens again. We have heard loud and clear from you, you
want to make sure this never happens again, and I appreciate that.
What I want to do is talk briefly about ATF and the structure
there. Obviously this was an acting director. You have to have con-
cerns, have extra there, you have extra attention to it in the man-
agement based on an acting director and the transitions and all
that has happened with ATF on it.
The structure with the FBI, and if they are going to go for an
undercover operation, they have a field office proposal that goes
through the supervisor in charge, it goes through headquarters, it
goes through legal. Then legal has to determine is this entrapment.
209
is this fully within the bounds of that. A U.S. attorney may get in-
volved in it at some point, and then it goes up to headquarters if
it involves a certain amount of money and a length of time and
such. So it has a very lengthy process getting all the way up to the
Department of Justice on that.
Is that a similar process to what ATF also does to be able to ap-
prove an operation like this undercover?
Attorney General Holder. I am not sure that it is as robust as
what you have just described with regard to the FBI, but it is
certainly
Mr. Lankford. But that is consistent with the FBI process, is
that correct?
Attorney General Holder. I am sorry?
Mr. Lankford. Is that the right process for FBI that they go
through?
Attorney General Holder. I think the FBI process is a good one,
and I think that what we need to do is have, not only with regard
to ATF but all the other investigative agencies within the Justice
Department, make sure that we have similar procedures in place.
That is one of the things that I have talked about with Todd Jones,
the Acting Director who is in the process of making changes at
ATF.
Mr. Lankford. Because that is the concern obviously, to put in
a system and structure to make sure this never, ever happens
again. It is one thing to talk about it after the fact. It is another
thing to try to fix it so it doesn’t become such a bureaucratic maze
that nothing happens, but it also makes sure there are some checks
and balances, that we are not doing entrapment, that someone else
is checking it, that it is getting up to your office. If it wasn’t getting
to your office or something like this before, let’s try to make sure
it does in the future day get up to DOJ. So that is something in
process.
What is the timeframe on that for a decision and a shift on that
that is occurring?
Attorney General Holder. You know, I mean, I would hope this
is something we can do over a matter of a relatively short number
of months. I think to do this right, we need to have buy-in from
people who are at ATF headquarters, people who are in the field,
so they have an ability to express their views and so that they will
accept — these are things that are probably going to be changes in
the way in which they have operated. So I think we are talking
about a matter of months before we have those kinds of things in
place.
Again, Todd has really made significant changes. He is working
real hard at this. But I think the concern that you have expressed
is one that I agree with. We should make sure that we have proc-
esses in place to minimize the possibility that what we are talking
about today, and legitimately talking about today, never happens
again.
Mr. Lankford. Right. The last thing I want to say to the Terry
family at some point is this occurred and nothing has happened to
make sure it never occurs again, that there is some way to be able
to say this is never going to occur again as long as it is on any of
our watch on it.
210
Let me make a quick side statement and then I am going to yield
back to the chairman as well. This is not something that I expect
you to answer on it. It is a comment that I want to be able to
make. It is off topic on it, so I am going to tell you that.
Yesterday this committee had a hearing dealing with the con-
stitutional issues and the repercussions of the President’s appoint-
ments to the NLRB and CFPB in January. Obviously your Depart-
ment is very involved in that in the constitutional statement.
In 2010, Deputy Solicitor General Neal Katyal was before the Su-
preme Court and Chief Justice Roberts asked him specifically, can
the NLRB, a question, be resolved with a recess appointment? Neal
Katyal at that time
Ms. Norton. Mr. Chairman, it looks like there is another viola-
tion of your rule coming up.
Chairman IssA. The gentlelady is out of order.
Mr. Lankford. I already prefaced this by saying I do not antici-
pate this — I am making a statement. I do not expect the Attorney
General to respond to this.
So Neal Katyal made this statement to the Supreme Court say-
ing that a recess appointment could not be done if it is less than
3 days. So there was an opinion by him on that before the Supreme
Court dealing specifically with the NLRB. Two years later. Justice
came back out and came out with a statement saying no, that is
legal, so there was a transition.
Mr. Chairman, what I would hope for at some point is to be able
to have some conversation to say what changed between 2010 and
2012 in Justice, that at one point they considered it not legal and
2 years later considered it legal and appropriate at that point. So
obviously I am not expecting — that is not in your preparation on
that, but that is something we just dealt with as a committee yes-
terday, and I would hope at some future day we would deal with.
Chairman IsSA. I thank the gentleman. There is no question
there.
Attorney General Holder. If I could just
Chairman IsSA. Are you yielding to me?
Mr. Lankford. I do yield back.
Chairman IsSA. I will give you time for a quick close.
The evidence that you have given us through discovery that on
February 4th, Lanny Breuer was, in fact, talking about a program
that included guns passing over the border in the hopes that they
would be intercepted, well, in fact, on March 10th in the Cole email
there is a statement I will read verbatim here. “As I said on the
call, to avoid any potential confusions I want to reiterate the De-
partment’s policy as though existing. We should not design or con-
duct undercover operations which include guns crossing the border.
If we have knowledge that guns are about to cross the border, we
must take immediate action to stop firearms from crossing the bor-
der, even if that permanently terminates or otherwise jeopardizes
an investigation.” That is a complete para^aph.
Can you, in fact, answer for this committee how you have coun-
seled or changed Lanny Breuer from a man who flew to Mexico and
said I want to have guns crossing the border to this, which says
there is a policy and it is wrong, and we have only got a month
in between them?
211
Attorney General Holder. Well, clearly what was proposed in, I
guess, February by Lanny Brewer was in contravention of the pol-
icy that I had the Deputy Attorney General make clear to every-
body at main Justice and to the field. And to the extent that there
is a tension, the policy that Mr. Cole has laid out is the policy of
the Justice Department and is the thing that I support.
Chairman ISSA. I want to thank you. I am not going to ask any
more questions. You have been very generous with your time.
I want to reiterate just one thing. We can’t undo everything that
was said here. The effort was made for this to be narrowly about
Fast and Furious. I believe that two other committees. Senate Ju-
diciary, House Judiciary, had each one time in which the primary
reason for you being called was not normal oversight, but in fact,
related to Fast and Furious and the letter that followed. We believe
we have had one crack at it also, and we appreciate your coming
three times to three separate committees. And that we appreciate.
In closing, I do believe there are people at Main Justice who ulti-
mately do need to go. If you are a political appointee, you should
not be reassigned if you are in some way culpable in something like
Fast and Furious. I have never accused you of having personal
knowledge. This committee has never accused you of having per-
sonal knowledge. One of our Members went on quite a bit about
the alternative of either you knew or should have known. I share
that, that, in fact. Justice has to have a bubble-up system that
holds specific people accountable for specific levels of action.
This committee would hope, under our reorganization and orga-
nizational side, not our investigation side, that we can continue
working with Justice so that we can have a comfort level, along
with the Judiciary Committees, that those systems are put into
place so that in the future, if something like this happens, we know
that, for example, a person signing a wiretap would also be a per-
son who would understand the level of the operation being de-
scribed in great detail, and you described it as this thick a docu-
ment, and it often is.
So I appreciate what you came here to do. This committee is ob-
viously widely divided on details of Fast and Furious and the letter
that followed.
I said I would let you have the last word. So, Mr. Attorney Gen-
eral, you have the last word.
Attorney General Holder. Well, Mr. Chairman, I would just
say
Chairman IssA. Would the gentleman suspend.
Mr. Cummings. Just 30 seconds.
Chairman IsSA. Thirty seconds of, course.
Mr. Cummings. I just wanted to go back very quickly, Mr. Chair-
man, to something that Mr. Gowdy was asking about with regard
to Mr. Weinstein, and just wanted to make it part of the record,
this transcript page 121, where he says, “Okay, first of all, let me
clear up the confusion that you noted about the pronouns. When
I say it is a tricky case given the number of guns that have walked,
I am talking exclusively about Wide Receiver.” I just wanted to say
that.
Thank you, Mr. Attorney General.
212
Chairman ISSA. Thank you. As we said, you have the last word,
Mr. Attorney General.
Attorney General Holder. Well
Chairman IsSA. Briefly.
Attorney General Holder. As I said, you and I talked before the
hearing began, and I just want to say that you, the ranking mem-
ber, the members of this committee have treated me fairly, with
one exception, one glaring exception, and I have talked about that.
The questions you have asked have been tough, they have been
fair, and I share what was indicated, a desire to make sure that
we have in place mechanisms so that the thing that brings us here
today is something we will never have to discuss again.
I think there are a variety of things that we can work on as peo-
ple who are dedicated to the safety of the American people, and I
look forward to working with the members of this committee across
party lines to try to reach those kinds of — successfully reach those
kinds of solutions.
Chairman IssA. I thank you. General Holder. We stand ad-
journed.
[Whereupon, at 1:20 p.m., the committee was adjourned.]
[The prepared statements of Hon. Dan Burton and Hon. Paul A.
Gosar follow:]
213
Opening Statement for Rep. Dan Burton
"Fast and Furious: Management Failures at the Department of Justice"
Thursday, February 2, 2012
Thank you, .Mr. Chairman for this opportunity to talk about the significant management failures
in the .lustice Department surrounding Operation Fast and Furious. A.s you may recall, I chaired this
Committee during the investigation of the pardon Marc Rich. The common thread between the actions
of Attorney General Holder at that time and now is his forgetfulness and lack a dearth of managerial
controls.
The office of Attorney General is one of the most important positions in our government. The
actions of .Mr. Holder then and now reveal a pattern of confusion, mismanagement, and a total
disrespect of Congress' oversight authorities. Lives were lost and no one is being held accountable at
the highest levels nearly two years later. As Harry Truman once said, the buck stops here. Mr. Holder
seems to think the buck stops anywhere but with him.
in addition to betraying the trust of the American people - e.specially those engulfed by the
violence along our southwestern border - Operation Fast and Furious has also damaged US-Mexican
relations, it is unthinkable that the United States sponsored a project that knowingly allow'ed
thousands of weapons to enter Mexico w'ithout its government's knowiedge or consent; especially as
we need Mexico's cooperation to defeat the cartels terrorizing .Mexico and our southw'cstern
communities. Operation Fast and Furious has proved to be one of the most serious errors in judgment
carried out in recent history by a Federal agency, and to date no one at the highest levels has been held
responsible.
Mr. Chairman, I applaud your determination to uncover the whole truth behind Operation Fast
and Furious, Based upon the DOJ's cooperation on this matter to date, and my own experience
investigating FBI corruption in Boston back in 2003, Attorney General Holder has an established
pattern of putting up every obstacle, no matter how flimsy, to thwart ongoing Congressional
investigations. Unfortunately, it has come as no surprise to me that the Department of Justice has
delayed Committee document requests by refusing to cooperate with Committee subpoenas; and has
produced scores of blacked-out pages. According lo the Department's own Inspector General, that
office has reviewed 80,000 pages of documents and more than 100,000 emails relating to its own Fast
and Furious investigation. In comparison, Congress has been given only between 5,000 - 6,400 pages.
The Committee must be vigilant and Mr. Chairman, you have been, I commend you and your staff for
taking seriously this Committee's oversight responsibilities.
No matter what the case is, .Attorney General Holder should be held responsible for overseeing
a Department that executed Fast and Furious. The American people and the innocent Mexican citizens
w'hose lives have been forever damaged by Operation Fast and Furious deserve answ'ers and they
deserve accountability from our Federal officials.
I look forward to Mr. Holder's testimony and his responses to the questions raised here today.
.Again, thank you Mr. Chairman.
1
214
Congressman Paul Gosar
Opening Statement
"Fast and Furious: Management Failures at the Department of Justice"
February 2"*', 2012
As the only member of the Oversight Committee from Arizona, I cannot state enough how crucial
today's hearing is to give Arizonans the answers they truly deserve about Operation Fast and Furious.
My constituents brought this scandal to my attention very early on in my first term - and our
committee, under the leadership of Chairman Darrell Issa, as well as Senator Chuck Grassley in the
Senate, has been working tirelessly to interview witnesses and investigate who authorized and
supervised Operation Fast and Furious. It is infuriating that a year later, we still cannot answer that
simple question.
We can start with what we do know. Our federal government, under the auspices of the Department of
Justice, enacted a program to walk guns into Mexico but failed to use any standard tracking methods.
The result was thousands of guns ending up in the hands of hardened Mexican criminals and drug
cartels, hundreds of deaths in Mexico, and several deaths here in the United States. We have seen
statements from inside the DOJ, and its fellow travelers in Congress, almost hoping for a tragedy in
order to use such a tragedy as a pretext for even more gun control laws. When the Second Amendment
is under attack by the very Agency sworn to uphold it, we must all remain vigilant against the onslaught
upon our freedoms and constitutional rights.'
I have said many times that the Constitution is not a menu from which the President, the Attorney
General, or even a member of Congress, can pick and choose what rights they like and will enforce, and
what rights they want to violate. The Second Amendment right to own and keep firearms is as
important to the freedom of this country as the First Amendment right to free speech or free worship.
It is as important as the right against unlawful search and seizure, or the right to an attorney before
facing imprisonment. We all took oaths to uphold and defend the Constitution. We did not swear to
uphold only those parts we really like.
It is a profound shame that this committee is today holding its third hearing with respect to Fast and
Furious and has yet to discover who authorized this program and who must be held accountable for it.
Frankly, this sad state of affairs is a deadly reflection of the bigger picture, of an Administration gone
wild - an Administration with no regard for the Constitution. Everywhere we look, from individual
insurance mandates, engaging in war without Congressional approval, to illegal recess appointments, to
Cabinet members who flout Congressional subpoenas - this President and his appointees believe that
the Constitution simply doesn't apply to them. Let me be clear. They are wrong. They do not deserve
to hold high office with this clear contempt for our Rule of Law. it is our duty as Congressional oversight
watchdogs to root out these egregious instances of executive abuse and hold the offenders accountable.
And I intend to do everything in my power to make that happen today.
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i also want to address the report that the minority released in the days preceding this hearing. I find the
report laughable. The report is notable as a poor whitewash and transparent partisan cover-up. The
"nothin’ to see here folks, move along now" attitude displayed in the Minority Report is a public
disservice. The Minority's suggestion that the idea that rogue ATF agents were wholly responsible for
Operation Fast and Furious and that the Department of Justice has its hands one hundred percent clean
in the matter is simply frivolous. The facts belie that assertion. Actions speak louder than words, and
this committee has had ATF agents willingly come forward and share their story, and also be open to
questions and answer them honestly. This Department of Justice has stonewalled our investigation,
hiding behind an Inspector General's report. We can all respect the work of Inspectors Genera! but let's
not mince words here: the Department of Justice is choosing not to cooperate with Congress, i fully
support my Chairman in the actions he chooses to take to address this non cooperation, on behalf of our
Committee and our Congress, which is a fully co equal branch of government.
Mr. Holder cannot continue to hide from the public and avoid addressing this matter. The people of
Arizona cannot hide from the consequences of Fast and Furious. Over a thousand guns, placed into the
hands of narco-terrorists and criminals, still remain at large. The guns we have found are usually
accompanied by dead bodies of innocent victims or industrial size toads of illicit drugs. It is sickening that
our government shares any portion of the blame for aiding these international criminals -• and just as
sickening that those appointed to positions of power see themselves as above the law and not
accountable for their part in it. Americans have record low confidence in their government and in their
public servants. With politically motivated stonewalling and covering up for political appointees, as the
Department of Justice has done, it's not hard to see why. We have a mission here to restore that trust
and it requires not letting up until we have ail the facts.
O